Proposed Rule2023-00625
Affirmatively Furthering Fair Housing
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 9, 2023
Issuing agencies
Housing and Urban Development Department
Abstract
Through this rulemaking, HUD proposes to implement the obligation to affirmatively further the purposes and policies of the Fair Housing Act, which is title VIII of the Civil Rights Act of 1968, with respect to certain recipients of HUD funds. The Fair Housing Act not only prohibits discrimination, but also directs HUD to ensure that the agency and its program participants will proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in housing-related opportunities, and foster inclusive communities that are free from discrimination. This proposed rule builds on the steps previously taken in HUD's 2015 Affirmatively Furthering Fair Housing (AFFH) final rule to implement the AFFH obligation and ensure that Federal funding is used in a systematic way to further the policies and goals of the Fair Housing Act. This rule proposes to retain much of the 2015 AFFH Rule's core planning process, with certain improvements such as a more robust community engagement requirement, a streamlined required analysis, greater transparency, and an increased emphasis on goal setting and measuring progress. It also includes mechanisms to hold program participants accountable for achieving positive fair housing outcomes and complying with their obligation to affirmatively further fair housing, modeled after those processes under other Federal civil rights statutes that apply to recipients of Federal financial assistance.
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[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Proposed Rules]
[Pages 8516-8590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00625]
[[Page 8515]]
Vol. 88
Thursday,
No. 27
February 9, 2023
Part II
Department of Housing and Urban Development
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24 CFR Parts 5, 91, 92, et al.
Affirmatively Furthering Fair Housing; Proposed Rule
Federal Register / Vol. 88 , No. 27 / Thursday, February 9, 2023 /
Proposed Rules
[[Page 8516]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 91, 92, 93, 570, 574, 576, 903 and 983
[Docket No. FR-6250-P-01]
RIN 2529-AB05
Affirmatively Furthering Fair Housing
AGENCY: Office of the Secretary, Department of Housing and Urban
Development (HUD).
ACTION: Proposed rule.
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SUMMARY: Through this rulemaking, HUD proposes to implement the
obligation to affirmatively further the purposes and policies of the
Fair Housing Act, which is title VIII of the Civil Rights Act of 1968,
with respect to certain recipients of HUD funds. The Fair Housing Act
not only prohibits discrimination, but also directs HUD to ensure that
the agency and its program participants will proactively take
meaningful actions to overcome patterns of segregation, promote fair
housing choice, eliminate disparities in housing-related opportunities,
and foster inclusive communities that are free from discrimination.
This proposed rule builds on the steps previously taken in HUD's 2015
Affirmatively Furthering Fair Housing (AFFH) final rule to implement
the AFFH obligation and ensure that Federal funding is used in a
systematic way to further the policies and goals of the Fair Housing
Act. This rule proposes to retain much of the 2015 AFFH Rule's core
planning process, with certain improvements such as a more robust
community engagement requirement, a streamlined required analysis,
greater transparency, and an increased emphasis on goal setting and
measuring progress. It also includes mechanisms to hold program
participants accountable for achieving positive fair housing outcomes
and complying with their obligation to affirmatively further fair
housing, modeled after those processes under other Federal civil rights
statutes that apply to recipients of Federal financial assistance.
DATES: Comment due date: April 10, 2023.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW, Room 10276, Washington, DC 20410-0500. Communications must refer to
the above docket number and title. There are two methods for submitting
public comments. All submissions must refer to the above docket number
and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments: Facsimile (FAX) comments are not acceptable.
Public Inspection of Comments. All properly submitted comments and
communications submitted to HUD will be available for public inspection
and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Due to security measures at the HUD Headquarters building, an advance
appointment to review the public comments must be scheduled by calling
the Regulations Division at 202-402-3055 (this is not a toll-free
number). HUD welcomes and is prepared to receive calls from individuals
who are deaf or hard of hearing, as well as individuals with
communication disabilities. To learn more about how to make an
accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. Copies of all comments
submitted are available for inspection and downloading at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Tiffany Johnson, Director, Policy and
Legislative Initiatives Division, Office of Fair Housing and Equal
Opportunity, Department of Housing and Urban Development, 451 7th
Street SW, Room 5250, Washington, DC 20410-8000, telephone number 202-
402-2881 (this is not a toll-free number). Individuals who are deaf or
hard of hearing and individuals with speech impairments may access this
number via TTY by calling the toll-free Federal Relay Service during
working hours at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Purpose of the Regulatory Action
Housing plays a central role in American life. Where children live
and grow up is inextricably linked to their level of educational
attainment, their relationship with policing and the criminal justice
system, what jobs they can obtain as adults, how much wealth their
family can attain, whether they will someday purchase their own home,
whether they will face chronic health conditions or other lifelong
obstacles, and ultimately the opportunities they will be able to
provide for their own children and grandchildren. As the United States
Supreme Court noted recently, in enacting the Fair Housing Act more
than fifty years ago, Congress recognized the critical role housing
played and continues to play in creating and maintaining inequities
based on race and color. See Tex. Dep't of Housing and Cmty Affairs v.
Inclusive Cmtys Project, Inc., 576 U.S. 519, 546 (2015) (``The [Fair
Housing Act] must play an important part in avoiding the Kerner
Commission's grim prophecy that `our Nation is moving toward two
societies, one [B]lack, one [W]hite--separate and unequal.' The Court
acknowledges the Fair Housing Act's role in moving the Nation toward a
more integrated society.'') (internal citations omitted).
Notwithstanding progress in combatting some types of housing
discrimination, the systemic and pervasive residential segregation that
was historically sanctioned (and even worsened) by Federal, State, and
local law, and that the Fair Housing Act was meant to remedy has
persisted to this day. In countless communities throughout the United
States, people of different races still reside separate and apart from
each other in different neighborhoods, often due to past government
policies and decisions. Those neighborhoods have very different and
unequal access to basic infrastructure (streets, sidewalks, clean
water, and sanitation systems) and other things that every thriving
community needs, such as access to affordable and accessible housing,
public transportation, grocery and retail establishments, health care,
and educational and employment
[[Page 8517]]
opportunities--frequently because government itself has intentionally
denied resources to the neighborhoods where communities of color live.
And this segregation is perpetuated by policies that effectively
preclude mobility to neighborhoods where opportunity is greater.
Moreover, inequities in real housing choice do not exist solely on
race or color lines, but across all the classes the Fair Housing Act
protects. Individuals with disabilities too frequently are excluded not
just from buildings but from whole communities because of lack of
accessible and affordable housing. The widespread lack of quality
affordable housing shuts out families with children and members of
other protected class groups.
This proposed rule implements the Fair Housing Act's Affirmatively
Furthering Fair Housing (AFFH) mandate across the Nation to address
these inequities and others that cause unequal and segregated access to
housing and the platform it provides for a better life. The proposed
rule is intended to foster local commitment to addressing local and
regional fair housing issues, both requiring and enabling communities
to leverage and align HUD funding with other Federal, State, or local
resources to develop innovative solutions to inequities that have
plagued our society for far too long. The proposed rule is meant to
provide the tools that HUD--together with other Federal, State, and
local agencies, as well as public housing agencies--can use to overcome
centuries of separate and unequal access to housing opportunity. In
line with the Nation's current reckoning with racial and other types of
inequity, the proposed rule is designed to assist HUD and its program
participants to take advantage of a unique opportunity to fulfill the
promise made when the Fair Housing Act was enacted on April 11, 1968.
This proposed rule takes as its starting point the fair housing
planning process created by the 2015 AFFH Rule (80 FR 42272, July 16,
2015), which was a significant step forward in AFFH implementation. It
then proposes refinements, informed by lessons HUD learned from its
implementation of the 2015 AFFH Rule, by feedback provided by States
and localities across the country, and by stakeholder input. For
example, the proposed rule is designed to reduce burden on program
participants by streamlining the analysis of fair housing issues that
they must perform, allowing them to focus more directly on the setting
of effective fair housing goals and strategies to achieve them. It also
would provide greater accountability mechanisms and increase
transparency to and participation by the public.
Ultimately, this proposed rule would provide a framework under
which program participants will set and implement meaningful fair
housing goals that will determine how they will leverage HUD funds and
other resources to affirmatively further fair housing, promote equity
in their communities, decrease segregation, and increase access to
opportunity and community assets for people of color and other
underserved communities.
Summary of Legal Authority
The Fair Housing Act (title VIII of the Civil Rights Act of 1968,
42 U.S.C. 3601-3619) declares that it is ``the policy of the United
States to provide, within constitutional limitations, for fair housing
throughout the United States.'' See 42 U.S.C. 3601. Accordingly, the
Fair Housing Act prohibits, among other things, discrimination in the
sale, rental, and financing of dwellings, and in other housing-related
transactions because of ``race, color, religion, sex,\1\ familial
status,\2\ national origin, or handicap.'' \3\ See 42 U.S.C. 3604 and
3605. Section 808(d) of the Fair Housing Act requires all executive
branch departments and agencies administering housing and urban
development programs and activities to administer these programs in a
manner that affirmatively furthers fair housing. See 42 U.S.C. 3608.
Section 808(e)(5) of the Fair Housing Act (42 U.S.C. 3608(e)(5))
requires that HUD programs and activities be administered in a manner
that affirmatively furthers the policies of the Fair Housing Act.
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\1\ Consistent with established practice, HUD interprets the
term ``sex'' to include gender identity, sexual orientation, and
nonconformance with gender stereotypes. See Memorandum from Damon Y.
Smith, Principal Deputy General Counsel to Jeanine M. Worden, Acting
Assistant Secretary for Fair Housing and Equal Opportunity,
``Application to the Fair Housing Act of the Supreme Court's
decision in Bostock v. Clayton County, GA'' (Feb. 9, 2021),
available at <a href="https://www.hud.gov/sites/dfiles/ENF/documents/Bostock%20Legal%20Memorandum%2002-09-2021.pdf">https://www.hud.gov/sites/dfiles/ENF/documents/Bostock%20Legal%20Memorandum%2002-09-2021.pdf</a>.
\2\ The term ``familial status'' is defined in the Fair Housing
Act at 42 U.S.C. 3602(k). It includes one or more children who are
under the age of 18 years being domiciled with a parent or guardian,
the seeking of legal custody, or pregnancy.
\3\ Although the Fair Housing Act was amended in 1988 to extend
civil rights protections to persons with ``handicaps,'' the term
``disability'' is more commonly used and accepted today to refer to
an individual's physical or mental impairment that is protected
under Federal civil rights laws, the record of such an impairment,
and being regarded as having such an impairment. For this reason,
except where quoting from the Fair Housing Act, this preamble and
proposed rule use the term ``disability.''
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Summary of Major Provisions of the Rule
The proposed rule retains much of the framework of the 2015 AFFH
Rule. Under the proposed rule, as under the 2015 AFFH Rule, program
participants will identify fair housing issues, prioritize the fair
housing issues they will focus on overcoming in the next three to five
years, and develop the goals they will implement to overcome those fair
housing issues. The proposed rule contains refinements based on HUD's
experience implementing the 2015 AFFH Rule and input from many
stakeholders. It is structured to simplify and provide greater
flexibility: regarding the analysis that program participants must
perform as part of their Equity Plans (which are a modified version of
the Assessments of Fair Housing performed under the 2015 AFFH Rule), to
allow more time and energy to be spent on effective goal setting; to
provide clarity, direction, and guidance for program participants to
promote fair housing choice; to provide more transparency to the public
and greater opportunity for public input; and to provide
accountability, a mechanism for regular progress evaluation, and a
greater set of enforcement options to ensure that program participants
are meeting their planning commitments and to provide them the
opportunity to revise commitments where circumstances change. The
proposed rule will advance these objectives in a manner that is
informed by the lessons HUD learned from the implementation of the 2015
AFFH Rule by:
a. Giving underserved communities a greater say in the actions
program participants will take to address fair housing issues. When HUD
implemented its 2015 AFFH Rule, program participants and community
members alike consistently reported to HUD that community engagement
(then called community participation) was an extremely effective and
important part of identifying fair housing issues and figuring out how
best to prioritize and address them. The proposed rule makes that
process more inclusive and robust, for example by requiring program
participants to consult with a broad range of community members, to
hold meetings in diverse settings, ensure that individuals with
disabilities and their advocates have equal access to those meetings,
and partner with local community-based organizations and stakeholders
to engage with protected class groups and underserved communities. The
proposed rule
[[Page 8518]]
empowers broader segments of the community by, for example, requiring
program participants to engage with a broad cross-section of the
community, which could include advocates, clergy, community
organizations, local universities, resident advisory boards, healthcare
professionals and other service providers, and fair housing groups. HUD
will also make the data HUD provides to program participants publicly
available, including maps and other information demonstrating the
existence of fair housing issues such as segregated areas, to
facilitate public engagement throughout the process. HUD specifically
seeks comment below regarding how it can best ensure that community
engagement is effective in informing the Equity Plan. The proposed rule
also requires program participants to submit, along with their Equity
Plans, more information regarding their community engagement efforts
than was required by the 2015 AFFH Rule. Additionally, as described
further below, the proposed rule allows the public to submit
information directly to HUD regarding submitted Equity Plans, providing
HUD greater ability to ensure that community engagement requirements
are satisfied. HUD also intends to supply more technical assistance for
program participants on effective ways to conduct community engagement.
b. Streamlining the Equity Plan's required fair housing analysis,
while providing easy-to-use data to support that analysis. HUD will
help program participants and their communities understand the data HUD
provides them. Aided by that data and more comprehensive community
engagement, program participants will be empowered to identify key fair
housing issues more effectively and efficiently without unnecessary
burden. Under HUD's 2015 AFFH Rule, HUD provided program participants
with considerable data and then required program participants to
conduct extensive data analysis in response to a large number of
questions. This data-driven analysis was very useful for identifying
fair housing issues such as patterns of segregation, but some program
participants, particularly smaller ones that lacked relevant expertise,
found it more difficult to complete than HUD had intended. The 2015
AFFH Rule used an Assessment Tool that contained approximately 100
questions program participants were required to answer in a prescribed
format, as well as about forty contributing factors that program
participants were required to consider for each fair housing issue they
identified. Some program participants, working on their own or with
technical assistance from HUD, conducted successful fair housing
analyses using the Assessment Tool. Other program participants,
however, struggled to properly interpret the data provided by HUD, and
several program participants retained consultants to perform the bulk
of the fair housing analysis for them. In HUD's experience reviewing
the fair housing plans submitted pursuant to the 2015 AFFH Rule, the
fair housing analyses conducted by program participants themselves or
with technical assistance from fair housing groups, universities, or
HUD were typically of much better quality than the fair housing
analyses prepared for program participants solely by consultants. Put
differently, the fair housing plans prepared by program participants
themselves typically reflected better analysis that gave greater
consideration to local fair housing issues and history rather than more
generic approaches taken by consultants that prepared analyses for
multiple program participants in different geographic areas of the
country. The proposed rule, therefore, reflects improvements on the
2015 AFFH Rule framework and is designed to reduce burden for program
participants in conducting the fair housing analysis portion of their
Equity Plan and identifying fair housing issues, leaving program
participants more time to establish meaningful fair housing goals and
making them more likely to conduct their own analyses. Under the
proposed rule, program participants will conduct their fair housing
analyses to identify fair housing issues by responding to questions in
a few broad areas (seven for consolidated plan recipients, five for
public housing agencies) that HUD is proposing to constitute the core
areas of analysis. While HUD anticipates providing program participants
with flexibility on the format of their Equity Plans, HUD will expect
program participants to answer all required questions, including those
that assess the reasons fair housing issues exist, as in the 2015 AFFH
Rule. Under this proposed rule, HUD is considering ways to reduce
burden for program participants by, for example, providing the program
participant with not only raw data and maps, but is also considering
providing technical assistance that helps highlight key takeaways and
fair housing issues. HUD will also provide technical assistance on
common fair housing issues, potential fair housing goals that could
overcome fair housing issues, and additional training on how to
identify and prioritize fair housing issues. Finally, HUD will make all
program participants' Equity Plans available on a HUD-maintained web
page, allowing program participants to review other program
participants' Equity Plans that have been accepted by HUD and learn
from the experiences of those who already have been through the
process. While HUD believes these changes will make it easier for many
program participants and their communities to effectively use HUD-
provided data, it also understands that the raw data and the AFFH Data
& Mapping Tool (AFFH-T) made available under the 2015 AFFH Rule have
proven invaluable for researchers and high-capacity program
participants, and HUD will continue to make such data available.
c. Placing greater focus on fair housing goals. A key difference
between the proposed rule and the 2015 AFFH Rule is a much greater
focus on HUD's review of program participants' goals that will
contribute to positive fair housing outcomes. While the proposed rule
sets out questions for program participants to answer, it does not
specify the content or length of responses. In some cases, the answer
to the question will be relatively clear based on the HUD-provided data
and technical assistance, and the program participant will only then
need to assess the causes and circumstances that result in fair housing
issues. In other instances, program participant may need to do more
analysis, including assessing local data, local knowledge, and
information obtained through community engagement, in order to
sufficiently respond to the question. HUD is making clear here, and
will continue to do so with technical assistance and guidance, that the
purpose of the questions is not to generate an extensive written
analysis of local conditions for its own sake, but to require program
participants to give serious consideration to the specific local
conditions (such as the existence of segregation, or the lack of
housing choice throughout a jurisdiction) that are likely to implicate
fair housing issues faced by different protected class groups.
Accordingly, HUD's review of program participants' answers to those
questions will entail confirming that the program participant did an
adequate job of identifying the fair housing issues revealed by the
HUD-provided data and by information provided during community
engagement. HUD's review of fair housing goals, meanwhile, will entail
determining whether the program participant's goals have been designed
[[Page 8519]]
and can be reasonably expected to overcome the fair housing issues that
the program participant has identified and prioritized for action in
the next three to five years. Stated plainly, HUD's review will focus
primarily on whether the Equity Plan appropriately identifies the
relevant fair housing issues and establishes fair housing goals that
can realistically be expected to address them and produce meaningful
fair housing outcomes for various protected class groups in the program
participant's underserved communities; HUD's review will not focus on
the volume of written analysis underlying the identification of the
fair housing issues.
d. Providing HUD more flexibility to work with program participants
to improve a submitted Equity Plan and ensure it meets regulatory
requirements. HUD's experience implementing the 2015 AFFH Rule
demonstrated that a robust back and forth between HUD and program
participants regarding the content of submitted plans was important to
the rule's success; in many instances, a submitted plan improved
substantially as a result of HUD engagement. However, the structure of
the 2015 AFFH Rule limited HUD's practical ability to do this work. HUD
was required to either accept or not accept a plan within 60 days of
submission. If an Assessment of Fair Housing (AFH) was not accepted by
HUD after the initial submission, HUD provided the program participant
an opportunity to revise and resubmit the plan for HUD review; however,
HUD then had a limited amount of time to review the revised plan, work
with the program participant to address remaining issues, and then
accept that plan before a decision on a submitted consolidated plan or
public housing agency (PHA) plan needed to be rendered. If the program
participant could not achieve an accepted AFH by the time the program
participant's consolidated plan or PHA Plan was due, the automatic
consequence was a cut-off of Federal funding. Faced with that
consequence, HUD ultimately accepted every plan, although many of the
plans that HUD accepted could still have benefited from improvements if
there had been additional time for HUD to work with the program
participant. This proposed rule provides HUD more time--100 days, with
the ability to extend that time for good cause--to review a submitted
Equity Plan and work with a program participant to ensure the plan
meets the requirements of this proposed rule. In addition, the proposed
rule provides that, if a program participant does not have an accepted
Equity Plan by the time a consolidated plan or PHA Plan must be
approved, to have that plan approved it must provide HUD with special
assurances that it will achieve an Equity Plan that meets regulatory
requirements within 180 days of the end of HUD's review period for its
consolidated plan or PHA Plan. At the end of the 180-day period, if the
program participant still does not have an Equity Plan that has been
accepted by HUD, HUD will seek the most serious of remedies by
initiating the termination of funding and will not grant or continue
granting applicable funds. HUD believes this structure will provide it
with the necessary enforcement authority and the flexibility to work
with program participants to achieve an Equity Plan that meets this
proposed rule's requirements. By obtaining special assurances, HUD will
continue to have the ability to enforce this proposed rule by
initiating the termination of funding for program participants that do
not provide the required special assurances or that do not achieve an
Equity Plan that is accepted by HUD in the time allotted. HUD believes
the addition of the procedures relating to special assurances provide a
stronger yet more flexible mechanism for HUD to compel compliance with
the requirements of this proposed rule beyond what it could require
under the 2015 AFFH Rule.
e. Creating a more direct linkage between the Equity Plan's fair
housing goals and the planning processes in the consolidated plan,
annual action plan, or PHA Plan. The proposed rule requires the program
participant to establish concrete fair housing goals that are designed
and can be reasonably expected to achieve meaningful fair housing
outcomes. In the process, program participants will identify the
funding and any contingencies that must be met for the program
participant to achieve the goal. The proposed rule then requires
program participants to incorporate the fair housing goals from their
Equity Plans into their consolidated plan, annual action plan, or PHA
Plan. The direct linkage between the Equity Plan and subsequent program
planning documents will enable program participants to make more
informed decisions about how to overcome circumstances that cause,
increase, contribute to, maintain, or perpetuate fair housing issues.
By incorporating their fair housing goals, strategies, and actions into
their planning documents, program participants will be better
positioned to build equity and fairness into their decision-making
processes for the use of resources and other investments, live up to
the commitments they have made in Equity Plans, and ultimately fulfill
their obligations to affirmatively further fair housing.
f. Implementing a more transparent process for program
participants' development and HUD's review of Equity Plans. The
proposed rule will enable members of the public to have online access
to all submitted Equity Plans; to provide HUD with additional
information regarding Equity Plans that are under HUD review; and to
know HUD decisions on Equity Plan acceptance and on program
participants' annual progress evaluations. HUD will use information
submitted by the public in its review of the Equity Plan. This
transparency is intended, in part, to assist program participants with
understanding how other similarly situated program participants
conducted their analyses. HUD believes that this transparency will
allow the public to be more engaged in the local fair housing planning
process, the implementation of fair housing goals, and ultimately in
assisting their local leaders in determining how to allocate resources
to address fair housing issues.
g. Tracking progress on fair housing goals. The proposed rule
requires program participants to conduct annual progress evaluations
regarding the progress made on each goal. These progress evaluations
will be submitted to HUD, and HUD will make them publicly available on
a HUD-maintained website. This annual progress evaluation ensures that
goal implementation stays on track and that progress (or lack thereof)
is disclosed to the public. In conducting this evaluation, a program
participant must assess whether to establish a new fair housing goal or
whether to modify an existing fair housing goal because it cannot be
achieved in the amount of time previously anticipated. The proposed
rule allows program participants, with HUD's permission, to submit a
revised Equity Plan that modifies goals or set new goals if
circumstances changed or if the established goals have been
accomplished. HUD believes this ability to account for changed
circumstances will make program participants more willing to set
ambitious, creative goals that may be dependent on certain
contingencies, since the goals can be updated if the contingencies are
not met. However, HUD will not grant permission to alter goals if the
program participant is simply choosing not to take necessary steps. The
annual progress evaluation will allow for public
[[Page 8520]]
awareness that a goal is not being met before it is too late to change
course to meet it.
h. Increasing accountability by creating a mechanism for members of
the public to file complaints and for HUD to further engage in
oversight and enforcement. Under the proposed rule, HUD will have the
ability to open compliance reviews, and members of the public will be
able to file complaints directly with HUD regarding a program
participant's AFFH-related activities. While these processes are new to
AFFH compliance, the proposed regulatory provisions relating to the
filing and investigation of complaints and HUD's procedures for
obtaining compliance are consistent with the oversight and enforcement
mechanisms that exist for other Federal civil rights statutes that HUD
implements. Accordingly, HUD anticipates that the agency, program
participants, and the public should be able to readily acclimate
themselves to these processes and that the associated burden will be
manageable.
These improvements are intended to result in tangible fair housing
outcomes that advance equity and increase opportunity for people of
color and other underserved communities while minimizing burden and
constraints on program participants in how those outcomes are
determined and achieved. Ultimately, those tangible fair housing
outcomes will be locally driven based on the fair housing issues that
are presented by local circumstances. This proposed rule does not
dictate the particular steps a program participant must take to resolve
a fair housing issue. Rather, the proposed rule is intended to empower
and require program participants to meaningfully engage with their
communities and confront difficult issues in order to achieve
integrated living patterns, overcome historic and existing patterns of
segregation, reduce racial and ethnic concentrations of poverty,
increase access to homeownership, and ensure realistic and truly equal
access to opportunity and community assets for members of protected
class groups, including those in historically underserved communities.
As previously noted, this proposed rule is intended to ensure that
program participants set and achieve meaningful fair housing goals
while reducing program participant burden in performing the required
analysis in the planning stage. The proposed rule reduces burden
compared with the 2015 AFFH Rule for program participants through the
provision of HUD data and assistance in interpreting the data and other
modifications such as not prescribing a particular format for the
written analysis. It is HUD's intention to allow program participants
to spend less time on data analysis and more time on setting meaningful
fair housing goals that are based on that data and other information,
including conversations with their local community regarding the most
effective means of advancing fair housing and equity. This does not
diminish the key role that interpretation of maps and other objective
data will continue to play in the required analysis, but rather enables
program participants to focus more of their time and energy on the fair
housing goals and strategies and actions they will employ to overcome
the fair housing issues identified using the data. HUD will continue to
provide program participants datasets, including maps, and tools that
contain at least as much data as is currently provided in the AFFH-T
Data & Mapping Tool. HUD will continue to make these data publicly
available, including for use by program participants in conducting
their Equity Plans, at <a href="https://www.hud.gov/program_offices/fair_housing_equal_opp/affh">https://www.hud.gov/program_offices/fair_housing_equal_opp/affh</a>. HUD will explore ways to build on and
improve the current AFFH-T Data & Mapping Tool and will continue to
evaluate whether these data or other data may be helpful to program
participants and the public in undertaking an analysis of how to
advance fair housing outcomes within local communities.
HUD is contemplating making its provision of these data more user
friendly in ways that will reduce burden for smaller program
participants and those with fewer resources while increasing their
understanding--and their communities' understanding--of what those data
signify. Along with updating and improving the current AFFH-T Data &
Mapping Tool, HUD is contemplating providing technical assistance that
would highlight key points to help program participants understand what
those maps and tables show. For example, technical assistance may
include identification of racially or ethnically concentrated areas of
poverty (R/ECAPs) in the jurisdiction and demographic information about
the R/ECAPs' residents, making it simpler for the program participant
to answer the relevant question in the required analysis. HUD
anticipates that these efforts will reduce the burden for program
participants to answer the required analysis questions and identify
fair housing issues, while providing information critical to the fair
housing analysis in a format that also can be understood by the
community.
The proposed rule is less burdensome compared to the 2015 AFFH
Rule. While this proposed rule continues to require program
participants to review and understand the data and their fair housing
implications, including for purposes of setting fair housing goals,
program participants will not be required to submit responses in the
form of data analysis. Except as specifically instructed in the
proposed analysis questions (in instances where HUD expects its own
provision of data to make it simple to do so), program participants
would not need to reference specific percentages or calculations, for
example, regarding demographics or segregation, but would be required
to show the connection between their data analysis, their
identification of fair housing issues, and the establishment fair
housing goals. Instead, the data provided by HUD, along with local data
and local knowledge, should be sufficient to drive the program
participant's analysis and ultimate identification of goals and
strategies. The program participant's answers should be informed by
data but need not be written in that form. These improvements will make
it easier for smaller program participants and those with fewer
resources to complete the written analysis, and also make it easier for
the community to engage in the process, understand the analysis of fair
housing issues in a submitted Equity Plan, and provide additional
relevant information to facilitate HUD's review. Program participants
will have the opportunity to engage with HUD staff to help ensure that
consultants, contractors, or complex data analysis are not required to
produce an Equity Plan that can be accepted.\4\
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\4\ HUD is aware that during implementation of the 2015 AFFH
Rule, many university-based researchers (along with fair housing
groups and other non-profit organizations) assisted program
participants in analyzing and understanding HUD-provided data for
purposes of identifying fair housing issues and establishing fair
housing goals in their AFHs.
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This proposed rule features much greater transparency for the
public to see and participate in the decisions program participants
make and HUD's responses to them. HUD expects to publish all Equity
Plan submissions and decisions as to whether HUD has accepted the
Equity Plan on its AFFH web page to further increase transparency and
reduce burden for program participants. This transparency is intended,
in part, to assist program participants with understanding how other
similarly situated program participants conducted their analyses. HUD
believes that by publishing this
[[Page 8521]]
information, not only will local officials be able to learn from other
jurisdictions' Equity Plans, but also the public will be more engaged
in the local fair housing planning process and implementation of local
fair housing goals. HUD anticipates that this approach may also lead to
collaboration with other government entities as well as the private
sector with respect to housing and community development activities and
investments in a program participant's jurisdiction. In addition, this
more robust community engagement process to discuss fair housing issues
and potential fair housing goals will lead to more transparent fair
housing planning and greater ability to influence equitable outcomes
for members of protected class groups, including people of color,
individuals with disabilities, and other underserved communities.
HUD expects that the refinements made to this proposed rule
compared with the 2015 AFFH Rule will help program participants more
easily identify where equity in their communities is lacking and how
they can affirmatively further fair housing by advancing equity for
protected class groups through the use of HUD funds, other investments,
and policy decisions. HUD's commitment to be a partner in the planning
process for program participants and the public alike should result in
a reduction of burden and greater transparency and public
participation, and result in program participants undertaking
meaningful actions to fulfill the promise of the AFFH mandate
established in 1968. HUD is soliciting comment on this proposed rule
and also seeks comment on specific topics in Section IV of this
preamble.
Summary of Benefits and Costs
As detailed in the Regulatory Impact Analysis, HUD does not expect
a large aggregate change in compliance costs for program participants
as a result of the proposed rule. As a result of increased emphasis on
affirmatively furthering fair housing within the planning process,
there may be increased compliance costs for some program participants,
while for others the improved process and goal setting, combined with
HUD's provision of foundational data, is likely to decrease compliance
costs. Program participants are currently required to engage in
outreach and collect data in order to support their certifications that
they are affirmatively furthering fair housing. As more fully addressed
in the Regulatory Impact Analysis that accompanies this rule, HUD
estimates that compliance with these additional planning requirements
would collectively cost program participants a total of $5.2 million to
$27 million per year, once the Equity Plan cycle is fully implemented,
a sum that is offset by the societal benefits accruing to fair housing
goals that decrease segregation and the lack of equal access to housing
and related opportunities throughout society.
Further, HUD believes that the proposed rule has the potential for
substantial benefit for program participants and the communities they
serve. The proposed rule would improve the fair housing planning
process by providing greater clarity regarding the steps program
participants must undertake to meaningfully affirmatively further fair
housing, and at the same time provide better resources for program
participants to use in taking such steps, thus increasing AFFH
compliance more broadly. Through this rule, HUD commits to provide
States, local governments, PHAs, the communities they serve, and the
general public with local and regional data, as well as assistance in
understanding that data, as discussed further below. From these data,
program participants should be better able to evaluate their present
environment to assess fair housing issues, identify the primary
determinants that account for those issues, set forth fair housing
priorities and goals, and document these activities.
The rule covers program participants that are subject to a great
diversity of local preferences and economic and social contexts across
American communities and regions. For these reasons, HUD recognizes
there is significant uncertainty associated with quantifying outcomes
of the process, as proposed by this rule, to identify barriers to fair
housing, the priorities of program participants in deciding which
barriers to address, the types of policies designed to address those
barriers, and the effects of those policies on protected classes. In
brief, because of the diversity of communities and regions across the
Nation and the resulting uncertainty of precise outcomes of the
proposed AFFH planning process, HUD cannot estimate the specific
benefits and costs of policies influenced by the rule. HUD does
recognize that segregation, combined with the legacy of discrimination
against protected class groups and longstanding disinvestment in
certain neighborhoods, has imposed and continues to impose substantial
costs on members of protected classes and society in general by
reducing employment, education, and homeownership opportunities as well
as the costs associated with reduced health and safety in neighborhoods
that have long faced disinvestment and other adverse environmental
impacts.\5\ HUD is confident, as discussed more fully below, that the
rule will create a process that allows for each jurisdiction to not
only undertake meaningful fair housing planning, but also build
capacity and develop a thoughtful strategy to affirmatively further
fair housing and make progress towards a more integrated society with
more equitable access to opportunity. The benefits of undertaking
meaningful actions to produce an integrated, just, and prosperous
society and otherwise further fair housing objectives far outweigh the
costs.
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\5\ See Acs, Pendall, Trekson, et al., ``The Cost of
Segregation: National Trends and the Case of Chicago 1990-2010,''
Urban Institute and The Metropolitan Housing and Communities Policy
Center (2017), available at <a href="https://www.urban.org/sites/default/files/publication/89201/the_cost_of_segregation.pdf">https://www.urban.org/sites/default/files/publication/89201/the_cost_of_segregation.pdf</a> (finding that
higher levels of racial segregation were associated with lower
incomes for Black residents, lower educational attainment levels for
White and Black residents, and lower levels of public safety for all
residents).
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II. Background
A. Legal Authority
The Fair Housing Act (title VIII of the Civil Rights Act of 1968,
42 U.S.C. 3601-3619), enacted into law on April 11, 1968, declares that
it is ``the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the United
States.'' See 42 U.S.C. 3601. Accordingly, the Fair Housing Act
prohibits discrimination in the sale, rental, and financing of
dwellings, and in other housing-related transactions because of race,
color, religion, sex, familial status, national origin, or disability.
See 42 U.S.C. 3601 et seq. In addition to prohibiting discrimination,
the Fair Housing Act (42 U.S.C. 3608(e)(5)) requires that HUD programs
and activities be administered in a manner to affirmatively further the
policies of the Fair Housing Act. Section 808(d) of the Fair Housing
Act (42 U.S.C. 3608(d)) directs other Federal agencies ``to administer
their programs . . . relating to housing and urban development . . . in
a manner affirmatively to further'' the policies of the Fair Housing
Act, and to ``cooperate with the Secretary'' in this effort.
The Fair Housing Act's provisions related to ``affirmatively . . .
further[ing]'' fair housing, contained in sections 3608(d) and (e),
require more than compliance with the Act's anti-discrimination
mandates. NAACP, Boston Chapter v. HUD, 817 F.2d 149
[[Page 8522]]
(1st Cir. 1987); see, e.g., Otero v. N.Y. City Hous. Auth., 484 F.2d
1122 (2d Cir. 1973); Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970). When
the Fair Housing Act was originally enacted in 1968 and amended in
1988, major portions of the statute involved the prohibition of
discriminatory activities (whether undertaken with a discriminatory
purpose or with a discriminatory effect) and how private litigants and
the government could enforce these provisions.
In sections 3608(d) and (e) of the Fair Housing Act, however,
Congress went further by mandating that ``programs and activities
relating to housing and urban development'' be administered ``in a
manner affirmatively to further the purposes of this subchapter.'' This
is not only a mandate to refrain from discrimination but a mandate to
take the type of actions that undo historic patterns of segregation and
other types of discrimination and afford access to opportunity that has
long been denied. Congress has repeatedly reinforced and ratified this
uncontradicted interpretation of the AFFH mandate, requiring in the
Housing and Community Development Act of 1974, the Cranston-Gonzalez
National Affordable Housing Act, and the Quality Housing and Work
Responsibility Act of 1998, that covered HUD program participants
certify, as a condition of receiving Federal funds, that they will
affirmatively further fair housing. See 42 U.S.C. 5304(b)(2),
5306(d)(7)(B), 12705(b)(15), 1437C-1(d)(16).\6\
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\6\ Section 104(b)(2) of the Housing and Community Development
Act (HCD Act) (42 U.S.C. 5304(b)(2)) requires that, to receive a
grant, the state or local government must certify that it will
affirmatively further fair housing. Section 106(d)(7)(B) of the HCD
Act (42 U.S.C. 5306(d)(7)(B)) requires a local government that
receives a grant from a state to certify that it will affirmatively
further fair housing. The Cranston-Gonzalez National Affordable
Housing Act (NAHA) (42 U.S.C. 12704 et seq.) provides in section 105
(42 U.S.C. 12705) that states and local governments that receive
certain grants from HUD must develop a comprehensive housing
affordability strategy to identify their overall needs for
affordable and supportive housing for the ensuing 5 years, including
housing for persons experiencing homelessness, and outline their
strategy to address those needs. As part of this comprehensive
planning process, section 105(b)(15) of NAHA (42 U.S.C.
12705(b)(15)) requires that these program participants certify that
they will affirmatively further fair housing. The Quality Housing
and Work Responsibility Act of 1998 (QHWRA), enacted into law on
October 21, 1998, substantially modified the United States Housing
Act of 1937 (42 U.S.C. 1437 et seq.) (1937 Act), and the 1937 Act
was more recently amended by the Housing and Economic Recovery Act
of 2008, Public Law 110-289 (HERA). QHWRA introduced formal planning
processes for PHAs--a 5-Year Plan and an Annual Plan. The required
contents of the Annual Plan included a certification by the PHA that
the PHA will, among other things, affirmatively further fair
housing.
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Courts have found that the purpose of the affirmatively furthering
fair housing mandate is to ensure that recipients of Federal funds used
for housing or urban development and certain other Federal funds do
more than simply not discriminate: recipients also must take actions to
address segregation and related barriers for members of protected class
groups, as often reflected in racially or ethnically concentrated areas
of poverty. The U.S. Supreme Court, in one of the first Fair Housing
Act cases it decided, acknowledged that the Act was intended to make
significant change in addition to outlawing discrimination in housing,
noting that ``the reach of the proposed law was to replace the ghettos
`by truly integrated and balanced living patterns.' '' Trafficante v.
Metro. Life Ins. Co., 409 U.S. 205, 211 (1972); see also Client's
Council v. Pierce, 711 F.2d 1406, 1425 (8th Cir. 1983) (``Congress
enacted section 3608(e)(5) to cure the widespread problem of
segregation in public housing''); see also Crow v. Brown, 332 F. Supp.
382, 391 (N.D. Ga. 1971), affirmed in part without op. and reversed in
part without op. by Banks v. Perk, 473 F.2d 910 (6th Cir. 1973) (``It
is also clear that the policy of HUD requires that public housing be
dispersed outside racially compacted areas . . . and [is] part of the
national housing policy.\7\ Indeed, relief has been granted to
plaintiffs and against HUD for failing to comply with this affirmative
duty to disperse public housing which is implicit in the Housing Act of
1949, the Civil Rights Act of 1964, and the Civil Rights Act of
1968.''). The Act recognized that ``where a family lives, where it is
allowed to live, is inextricably bound up with better education, better
jobs, economic motivation, and good living conditions.'' 114 Cong. Rec.
2276-2707 (1968). As the First Circuit has explained, section
3608(e)(5) and the legislative history of the Act show that Congress
intended that ``HUD do more than simply not discriminate itself; it
reflects the desire to have HUD use its grant programs to assist in
ending discrimination and segregation, to the point where the supply of
genuinely open housing increases.'' NAACP, Boston Chapter v. HUD, 817
F.2d at 154; see also Otero, 484 F.2d at 1134 (section 3608(d) requires
that ``[a]ction must be taken to fulfill, as much as possible, the goal
of open, integrated residential housing patterns and to prevent the
increase of segregation, in ghettos, of racial groups whose lack of
opportunity the Act was designed to combat'').
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\7\ Reflecting the era in which it was enacted, the Fair Housing
Act's legislative history and early court decisions refer to
``ghettos'' when discussing racially concentrated areas of poverty.
In addition, much of the litigation during this period related to
the siting of public housing; however, HUD notes that the holdings
of these courts apply to all programs and activities administered by
HUD and are not limited to the public housing program.
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The Act itself does not define the precise scope of the
affirmatively furthering fair housing obligation for HUD or HUD's
program participants. Over the years, courts have provided some
guidance for this task. In the first appellate decision interpreting
section 3608, for example, the U.S. Court of Appeals for the Third
Circuit emphasized the importance of racial and socioeconomic data to
ensure that ``the agency's judgment was an informed one'' based on an
institutionalized method to assess site selection and related issues.
Shannon, 436 F.2d at 821-22. In multiple other decisions, courts have
set forth that section 3608 applies to specific policies and practices
of HUD program participants. See e.g., Otero, 484 F.2d at 1132-37;
NAACP, Boston Chapter, 817 F.2d at 156 (``. . . a failure to `consider
the effect of a HUD grant on the racial and socio-economic composition
of the surrounding area' '' would be inconsistent with the Fair Housing
Act's mandate); Langlois v. Abington Hous. Auth., 207 F.3d 43 (1st Cir.
2000); U.S. ex rel. Anti-Discrimination Ctr. v. Westchester Cnty., 2009
WL 455269 (S.D.N.Y. Feb. 24, 2009). The U.S. Court of Appeals for the
First Circuit, in evaluating how the AFFH mandate applies to HUD and
its program participants, including the decisions made in the
administration of their programs and activities, further provided that
``the need for such consideration itself implies, at a minimum, an
obligation to assess negatively those aspects of a proposed course of
action that would further limit the supply of genuinely open housing
and to assess those aspects of a proposed course of action that would
increase that supply. If HUD is doing so in any meaningful way, one
would expect to see, over time, if not in any individual case, HUD
activity that tends to increase, or at least, that does not
significantly diminish the supply of open housing.'' NAACP, Boston
Chapter, 817 F.2d at 156.
More recently, in examining why regional solutions to segregation
may be necessary, a United States District Court declared that ``[i]t
is high time that HUD live up to its statutory mandate to consider the
effect of its policies on the racial and socioeconomic composition of
the surrounding area . . . The Court finds it no longer appropriate for
HUD,
[[Page 8523]]
as an institution with national jurisdiction, essentially to limit its
consideration of desegregative programs . . .'' Thompson v. HUD, 348 F.
Supp. 2d 398, 409 (D. Md. 2005). The court emphasized the importance of
using the AFFH mandate to afford choice to individuals and families
about where they live by stating that, ``[i]n this regard, it is
appropriate to note that there is a distinction between telling a
person that he or she may not live in [a] place because of race and
giving the person a choice so long as the place in question is, in
fact, available to anyone without regard to race.'' Thompson, 398 F.
Supp. 2d at 450. As recently as 2015, the U.S. Supreme Court explained
that ``[m]uch progress remains to be made in our Nation's continuing
struggle against racial isolation . . . The Court acknowledges the Fair
Housing Act's continuing role in moving the Nation toward a more
integrated society.'' Tex. Dep't of Hous. Cmty. Affairs v. Inclusive
Cmtys. Project, Inc., 576 U.S. 519, 546-47 (2015). As the Supreme Court
held in lnclusive Communities, the Fair Housing Act's broad remedial
purposes cannot be accomplished simply by banning intentional
discrimination today. Id.
In addition to the statutes and court cases emphasizing the
requirement of recipients of Federal housing and urban development
funds and other Federal funds to affirmatively further fair housing,
executive orders have also addressed the importance of complying with
this requirement.\8\
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\8\ Executive Order 12892, entitled ``Leadership and
Coordination of Fair Housing in Federal Programs: Affirmatively
Furthering Fair Housing,'' issued January 17, 1994, vests primary
authority in the Secretary of HUD for all Federal executive
departments and agencies to administer their programs and activities
relating to housing and urban development in a manner that furthers
the purposes of the Fair Housing Act. Executive Order 12898,
entitled ``Executive Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,'' issued on
February 11, 1994, declares that Federal agencies shall make it part
of their mission to achieve environmental justice ``by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations.''
Executive Order 13985, ``Advancing Racial Equity for Underserved
Communities Through the Federal Government'' issued on January 25,
2021, establishes that it is the policy of the Federal Government to
pursue a comprehensive approach to advancing equity for all,
including people of color and others who have been historically
underserved, marginalized, and adversely affected by persistent
poverty and inequality. Executive Order 13985 makes clear that
affirmatively advancing equity, civil rights, racial justice, and
equal opportunity is the responsibility of the whole of our
Government, and that doing so requires a systematic approach to
embedding fairness in decision making processes, and as such,
executive departments and agency must recognize and work to redress
inequities in their policies and programs that serve as barriers to
equal opportunity. Furthermore, President Biden's Memorandum to the
Secretary of HUD dated January 26, 2021, titled ``Memorandum on
Redressing our Nation's and the Federal Government's History of
Discriminatory Housing Practices,'' obligates HUD to examine its
programs and activities and empowers the Secretary to take any
necessary steps, as appropriate and consistent with applicable law,
to implement the Fair Housing Act's requirements that HUD administer
its programs and activities in a manner that affirmatively furthers
fair housing.
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B. HUD's July 16, 2015 Final Rule, HUD's 2020 Preserving Communities
and Neighborhood Choice Rule, and HUD's June 10, 2021 Interim Final
Rule
On July 16, 2015, the Department published a final AFFH regulation
(2015 AFFH Rule) at 24 CFR 5.150 through 5.180, which required program
participants to conduct and submit to HUD an Assessment of Fair Housing
(AFH).\9\ The 2015 AFFH Rule reflected HUD's efforts to more fully and
meaningfully effectuate the AFFH mandate of the Fair Housing Act. The
promulgation of the 2015 AFFH Rule was a significant and important step
toward realizing the promise of the AFFH mandate.
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\9\ Prior to HUD's 2015 AFFH Rule, beginning in 1996, HUD
required program participants to undertake an ``Analysis of
Impediments to Fair Housing Choice,'' (AI) which was the mechanism
for supporting their AFFH-related certifications. HUD issued
guidance in the form of the Fair Housing Planning Guide for how to
conduct an AI. HUD did not require the AI to be submitted, though
HUD would review AIs in connection with compliance reviews. The 2015
AFFH Rule replaced the AI process with the AFH process.
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To implement the 2015 AFFH Rule, the Department developed and
required the use of Assessment Tools for different types of program
participants (which were subject to public comment through the process
required under the Paperwork Reduction Act), created fact sheets and
guidance to assist program participants in conducting their AFHs, and
provided a data and mapping tool (AFFH-T) that remains publicly
available. While the promulgation of the 2015 AFFH Rule marked a
substantial improvement to HUD's implementation of the AFFH mandate
with respect to certain recipients of Federal financial assistance from
the Department, it was not perfect, and HUD learned important lessons
about how the 2015 AFFH Rule could be improved.
The required use of Assessment Tools delayed implementation of the
2015 AFFH Rule because of the need to adhere to the Paperwork Reduction
Act process, which includes publication of two Federal Register notices
and two rounds of public comment solicitation.\10\ When implementation
began, between October 2016 and December 2017, HUD received, reviewed,
and issued initial decisions on forty-nine AFHs. HUD's experience with
the implementation of the 2015 AFFH Rule highlighted some areas for
improvement, including ways in which the identification of fair housing
issues could be streamlined. Furthermore, due to the complexity of the
assessment required and the need to adhere to the specific format
required, many program participants utilized outside contractors to
complete their AFHs, others misunderstood the questions asked, and some
failed to identify fair housing issues or set meaningful goals to
affirmatively further fair housing. Many submissions merely recounted
what the HUD-provided data showed, rather than providing an analysis of
the actual fair housing issues program participants' communities were
and are facing. In some instances, this resulted in goals that
consisted of a program participant merely continuing with actions that
would maintain existing conditions rather than advancing equity for
members of protected class groups and underserved communities.
Similarly, the 2015 AFFH Rule's requirement that program participants
identify and prioritize factors that contribute to fair housing issues
(from a list of over forty potential factors) proved confusing and, in
some instances, program participants were not able to translate
identified factors into meaningful goals that could be reasonably
expected to result in material progress.
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\10\ See, PRA approval process at <a href="https://pra.digital.gov/clearance-process/">https://pra.digital.gov/clearance-process/</a>.
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At the same time, the 2015 AFFH Rule demonstrated that its basic
planning structure had considerable promise for assisting local
communities to achieve meaningful fair housing ends that are responsive
to local needs. Program participants and members of the community
reported that, because program participants were required to answer
specific questions regarding longstanding segregation and other fair
housing issues, they had productive conversations about important
issues they otherwise would not have confronted. Moreover, some AFH
submissions contained creative fair housing goals, including by
collaborating across different sectors (e.g., public housing agencies
and school districts working together), to find ways to overcome
disparities for protected class groups in specific geographic areas.
HUD believes this demonstrates that the required focus on core fair
housing topics and goal setting required by the 2015 AFFH Rule remain
appropriate, even as it also heard from many stakeholders of the need
for a
[[Page 8524]]
greater emphasis on goals and outcomes tied to a streamlined analysis.
As more fully explained below, this proposed rule seeks to build on
these lessons learned. HUD specifically invites comment on this
proposal in Section IV of this preamble.
In 2018, HUD suspended implementation of the 2015 AFFH Rule by
withdrawing the operative assessment tool that program participants
were required to use for conducting an AFH. See 83 FR 23927 (Jan. 5,
2018). Then, on August 7, 2020, at 85 FR 47899, HUD promulgated a final
rule--Preserving Community and Neighborhood Choice (PCNC Rule)--which
repealed the 2015 AFFH Rule. The PCNC Rule redefined the AFFH mandate
in a manner that was a substantial and substantive departure from
decades of judicial and administrative precedent interpreting the AFFH
mandate in the Fair Housing Act.
On June 10, 2021, HUD promulgated an interim final rule,
``Restoring Affirmatively Furthering Fair Housing Definitions and
Certifications'' (AFFH IFR), in order to repeal the PCNC Rule and
restore legally supportable definitions and certifications for program
participants. See 86 FR 30779 (June 10, 2021). The AFFH IFR restored
relevant definitions from the 2015 AFFH Rule and created a process for
program participants to certify to HUD that they will affirmatively
further fair housing. At that time, HUD did not reinstate other
provisions from the 2015 AFFH Rule, but committed to further
implementation of the AFFH mandate at a future date, which is the
purpose of this proposed rule.
HUD invited and considered public comments on the AFFH IFR. HUD
also undertook multiple listening sessions to inform this proposed
rule. These listening sessions included a variety of stakeholders
including HUD program participants, fair housing and civil rights
advocates, community organizations, and other interested members of the
public. These stakeholders provided their views about what worked and
what did not with respect to the implementation of the 2015 AFFH Rule,
recommended additional features and refinements that they believed a
new rule should include, and identified certain fair housing- and
equity-related issues prevalent in their communities that they hoped a
proposed rule would address. HUD thanks these stakeholders for this
valuable input and has taken it into account in formulating this
proposed rule.
This proposed rule, as more fully described below, restores much of
the structure of the 2015 AFFH Rule, but with modifications and
improvements to increase transparency and accountability, and to reduce
burden, while retaining flexibility for program participants to
establish fair housing goals based on their local circumstances. The
proposed rule generally tracks the structure of the 2015 AFFH Rule
because HUD believes program participants are familiar with that
structure; however, HUD is open to considering changes to this proposed
regulatory scheme to effectively and meaningfully implement the Fair
Housing Act's AFFH mandate. HUD specifically seeks comment on this
topic in Section IV of this preamble.
C. HUD Proposes To Restore Much of the Structure of the 2015 AFFH Rule,
While Streamlining the Required Analysis for Program Participants, and
Adding Features That Will Bolster the Effective Implementation of the
AFFH Rule
HUD now proposes to restore much of the structure of the 2015 AFFH
Rule, while proposing modifications that HUD believes will lead to a
more effective fair housing planning process while reducing burden for
program participants and providing the public more transparency and
opportunities to influence both planning and implementation. HUD is
responsible for ensuring that the Fair Housing Act's AFFH mandate is
implemented and that it drives the change that Congress intended in
1968--the undoing of vestiges of segregation, unequal treatment, and
inequitable access to opportunity that the Federal Government itself
helped create--and helps combat the unequal access to housing and
related opportunities because of race, color, national origin,
religion, sex, familial status, and disability that persists in our
society today.
For change to occur throughout the Nation, HUD must help the states
and localities it serves to bring it about, arming them with the
relevant information and establishing a process that assists in
identifying fair housing issues and then implementing meaningful
actions to remedy them. To that end, the 2015 AFFH Rule created a
robust and data-driven analytical scheme for program participants to
use when engaging in fair housing planning and determining what actions
were necessary in their local communities to affirmatively further fair
housing. Under the 2015 AFFH Rule, HUD provided program participants
with considerable raw data, in part through an interface known as AFFH-
T that the program participants were expected to use to access data
relevant to their geographic areas of analysis, and then required
program participants to analyze this data in answering questions
contained in the AFH Assessment Tool designed to drive the
identification of fair housing issues. It was HUD's intention that the
AFH Assessment Tool's User Interface would import the data from the
AFFH-T. HUD now recognizes that this approach, while achieving a major
step forward in fair housing planning and providing an invaluable
source of publicly available data, particularly for researchers and
better-resourced program participants, created some unnecessary burden
and confusion particularly for smaller program participants and those
with fewer resources. For instance, HUD is aware that program
participants struggled to use the AFH Assessment Tool's User Interface
and perform the required data-driven analysis. Accordingly, while HUD
is using the 2015 AFFH Rule as a model for this proposed rule, this
proposed rule streamlines the questions in the required analysis and
HUD proposes to make it more user-friendly. This would enable program
participants to more readily use HUD-provided data, including during
community engagement, to identify fair housing issues and set goals
that will result in meaningful change. HUD continues to consider
whether other changes to the structure set out in the proposed rule
would further reduce burden and maximize material positive change and
seeks comment to that effect in Section IV, below.
HUD notes that the proposed rule is not intended to conflict with
or interfere with program participants carrying out existing
programmatic responsibilities including maintenance of affordable
housing. It remains a top priority for HUD to preserve and maintain the
existing stock of long-term affordable rental housing, including the
federally assisted stock. HUD recognizes the overwhelming need for
affordable and accessible housing and the inadequate supply of HUD-
assisted housing to meet that need. The most recent HUD report on Worst
Case Needs for Affordable Housing (issued July 2021) found there were
over 7.77 million unassisted very low-income renter households facing
either severe rent burden (paying more than half their incomes for
rent) or severely inadequate housing conditions, or both. This does not
include persons facing homelessness, nor does it include lower income
(but not very low-income)
[[Page 8525]]
cost burdened households. HUD believes and expects that program
participants can act in recognition of this urgent need to maintain and
add to existing affordable and accessible housing stock consistent with
the fair housing principles and requirements set forth in this proposed
rule.
HUD recognizes that, notwithstanding its efforts to make
refinements in this proposed rule to reduce burden and simplify the
Equity Plan analysis for all program participants, some smaller program
participants may benefit from additional flexibility and technical
assistance. In particular, HUD is aware that small PHAs and
consolidated plan participants may have significantly fewer personnel
and financial resources available to complete the analysis contemplated
in this proposed rule when compared to larger entities, especially if
they are unable to identify another entity they can work with to submit
a joint Equity Plan.
As compared to the 2015 AFFH Rule, HUD has significantly
streamlined the analysis that would be required for a program
participant's Equity Plan from what was required in the Assessment of
Fair Housing and has eliminated the analysis of contributing factors
required by the 2015 AFFH Rule. This streamlined analysis would still
require program participants to assess the underlying causes of the
identified fair housing issues as a basis for designing effective fair
housing goals. In addition, by providing simpler, standard questions
for all program participants in the regulatory text itself, HUD would
not be continually revisiting those questions through revised
assessment tools, which would be subject to changes under the Paperwork
Reduction Act (PRA) (a Federal law discussed later in this preamble) at
least every three years, thereby giving program participants long-term
certainty about the analysis they would be required to undertake and
reducing the burden involved in preparing subsequent Equity Plans.
Importantly, HUD has sought to design the questions, and its
anticipated review of answers, such that the complexity and burden of
satisfactory answers will scale based on the size of a program
participant. For example, the largest PHAs (under the proposed rule, a
PHA that administers 10,000 or more combined public housing and voucher
units) and the largest consolidated plan participants (under the
proposed rule, a program participant that receives a total of $100
million or more in formula grant funds) are likely to operate in large
metropolitan areas with multiple local government entities, various
categories of publicly supported housing and other affordable housing,
many different types of community assets across the geographic area of
analysis, and millions of community residents with significantly more
complex demographic patterns. Conversely, the smallest PHAs and
smallest consolidated plan participants are likely to operate in rural
areas, newly suburban areas, or other localities with far fewer
community assets, more limited public infrastructure, and more
homogenous demographic patterns among significantly smaller populations
(e.g., 50,000 residents). As a result, smaller program participants,
though responding to the same questions, would be expected to have less
to analyze and HUD anticipates that it would be acceptable for them to
provide briefer answers. As described below, in rare instances and
typically with smaller program participants, program participants may
respond that much or all of the question is not applicable to them, as
long as this response is supported by realities on the ground,
including through HUD-provided data and insights drawn from local
knowledge and community engagement.
During the implementation of the 2015 AFFH Rule, HUD's efforts to
address the issue of burden on small program participants by requiring
simplified analyses were largely unsuccessful. HUD created inserts
within the Assessment Tools for small PHAs and consolidated plan
program participants but found that this process still resulted in
confusion. Moreover, the smaller program participants that submitted
AFHs to HUD generally either did not use the inserts or submitted
essentially the same analysis as would have been required by the
standard questions. Nonetheless, HUD is committed to exploring ways to
further reduce the burden of preparing an Equity Plan for small PHAs
and small consolidated plan program participants while ensuring that
they engage in fair housing planning that is sufficient to meet their
AFFH obligations. HUD solicits comment in this proposed rule on whether
it should take an alternative approach for smaller program
participants, including whether it should require such participants to
analyze fair housing issues in a different manner.
Additionally, HUD is aware that some small PHAs (such as those that
operate only Public Housing but do not participate in the Housing
Choice Voucher (HCV) program, including many of those in rural areas)
and some small consolidated plan participants (such as those that only
receive Community Development Block Grant (CDBG) funds) may have
limited ability to impact housing choice or mobility, making it harder
for them to establish mobility-related goals as discussed in the
definition of ``balanced approach'' in Sec. 5.152. In those
circumstances, a collaborative approach with other entities to address
issues outside their control may be warranted and may allow them to set
goals that would enable them to pursue a balanced approach. For
example, HUD expects such small, public housing-only PHAs could
undertake collaboration and outreach efforts with local governments,
the private sector, non-profits, and other applicable governmental
entities to address fair housing issues and formulate appropriate fair
housing goals. Specific examples include working with a local
government to address exclusionary zoning, coordinating with local or
State agencies to increase public transportation options, addressing
lead contamination or other environmental hazards, ensuring appropriate
emergency response coverage, or partnering with an adjacent PHA or
other larger PHAs that have HCV programs to increase mobility,
including through portability programs. Similarly, small PHAs (and all
PHAs as well) could review and make revisions to their PHA Admissions
and Continued Occupancy Policy and other policies to positively impact
underserved communities beyond fulfilling existing requirements, e.g.,
modifying preferences or doing specific outreach to organizations that
support underserved communities. Through such actions, HUD believes
that even the smallest PHAs can meaningfully impact fair housing
outcomes within their sphere of influence, even as it recognizes that
their options and resources may be limited compared to those of larger
PHAs. HUD does not propose to exempt smaller, public housing-only PHAs
from efforts to use a balanced approach or their obligation to
affirmatively further fair housing, but it is committed to providing
guidance regarding how the AFFH obligation and the balanced approach
apply when a public housing-only PHA has limited ability to directly
control issues that involve mobility-related goals as discussed in the
definition of balanced approach.
Nonetheless, HUD seeks comment on the extent to which smaller PHAs
and consolidated plan participants can set goals that constitute a
balanced approach as defined in this proposed rule, including examples
of goals that such PHAs and consolidated plan
[[Page 8526]]
participants can appropriately and reasonably set. To the extent that
commenters believe some smaller PHAs and consolidated plan participants
may not be able to set goals consistent with a balanced approach, HUD
seeks comment on what are appropriate expectations for smaller PHAs and
consolidated plan participants that ensure that meeting their
regulatory planning requirements will put them on the path to comply
with their affirmatively furthering fair housing obligation.
Please see specific requests for comment in Section IV of this
proposed rule related to reducing burden on small program participants.
HUD is also proposing other changes to the 2015 AFFH Rule that are
designed to make the fair housing planning processes more transparent
to the public and responsive to local fair housing issues. For example,
HUD is considering how it can better support its program participants
during the community engagement process in order to ensure that
representatives from the entire community have the chance to provide
their important perspectives, including members of protected class
groups and underserved communities. HUD continues to consider and
evaluate ways to eliminate unnecessary burden for program participants
to incorporate public feedback they receive so they can develop
effective goals to address local fair housing issues. HUD anticipates
that the more transparent process articulated in this proposed rule for
publication of Equity Plans will help reduce burden by allowing program
participants to learn from and build upon the experiences of others.
HUD acknowledges that implementation of the AFFH mandate will not
and cannot occur without burden for program participants, though HUD is
committed to ensuring that program participants experience less burden
than the 2015 AFFH Rule imposed. Under the proposed rule, program
participants would continue to be required to submit certifications
that they will affirmatively further fair housing in connection with
documents such as their consolidated plan, annual action plan, or PHA
Plan (or any plan incorporated therein), and it will continue to be
HUD's responsibility to ensure that these certifications are accurate.
Furthermore, HUD is committed to advancing equity for protected class
groups and underserved communities, as well as assisting its program
participants in doing the same. To truly honor Congress' intent, any
regulation to implement the Fair Housing Act's AFFH mandate must help
program participants move away from the status quo with respect to
planning approaches and facilitate the development of innovative
solutions to overcome decades, if not centuries, of housing-related
inequality throughout American communities.
The need for change remains urgent; many of the problems the Kerner
Commission Report \11\ identified are still with us today, even as
other barriers to equal access to housing opportunities have taken on
increased attention. In particular, the Nation remains highly
segregated by race, communities continue to have vastly different
access to critical resources because of historic disinvestment in
communities of color, there is still a large wealth gap between people
of color and White persons, and the lack of choice for many about where
to live persists notwithstanding that the Fair Housing Act barred
discrimination based on race and other protected characteristics as a
formal matter more than 50 years ago. Both anecdotal evidence and
empirical research continue to demonstrate that many low-income
families in all protected class groups face barriers to obtaining or
keeping housing in well-resourced, low-poverty areas that provide
access to opportunity and community assets, such as desirable schools,
parks, grocery stores, and reputable financial institutions, among
others. Ample research demonstrates that ongoing discrimination and
exclusionary practices, not preferences among low-income families and
members of protected class groups, drives residential and income
segregation today.\12\ In addition, continued disinvestment not only in
housing, but in community assets in areas that are not well-resourced
perpetuates this residential and income segregation.
---------------------------------------------------------------------------
\11\ Report of the National Advisory Committee on Civil
Disorders, Mar. 1, 1968, available at <a href="https://www.hud.gov/sites/dfiles/FHEO/documents/kerner_commission_full_report.pdf">https://www.hud.gov/sites/dfiles/FHEO/documents/kerner_commission_full_report.pdf</a>.
\12\ See for example, Bergman, Chetty, DeLuca, Hendren, Katz,
and Palmer, ``Creating Moves to Opportunity: Experimental Evidence
on Barriers to Neighborhood Choice,'' August 2019, available at
<a href="https://opportunityinsights.org/wp-content/uploads/2019/08/cmto_paper.pdf">https://opportunityinsights.org/wp-content/uploads/2019/08/cmto_paper.pdf</a>.
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Research also shows that this lack of choice as to where families
can live has serious consequences. Children who move to low-poverty
neighborhoods have increased academic achievement, greater long-term
chances of success, and less intergenerational poverty.\13\ Children
who move to low-poverty neighborhoods have also been shown to
experience lower rates of hospitalization and lower hospital
spending.\14\ Meanwhile, adults given the chance to move to low-poverty
neighborhoods experience reductions in extreme obesity and
diabetes.\15\ For example, the Opportunity Atlas examines a change in
the way the literature has studied and measured poverty and
neighborhood conditions by looking at longitudinal information rather
than snapshots in time, which allows an evaluation of the root causes
of long-term outcomes by looking back at where children grew up.\16\
One finding from the Opportunity Atlas suggests that if a child moves
from a ``below-average to an above-average neighborhood at birth,'' it
could increase the child's lifetime earnings by $200,000.\17\ Another
study concluded with respect to income disparities that ``initiatives
whose impacts cross neighborhood and class lines and increase upward
mobility specifically for Black men hold the greatest promise of
narrowing the [B]lack-[W]hite gap. There are many promising examples of
such efforts: mentoring programs for [B]lack boys, efforts to reduce
racial bias among [W]hites, interventions to reduce discrimination in
criminal justice, and efforts to facilitate greater interaction across
racial groups.'' \18\ Furthermore, researchers have found that even
low-income individuals can have an increased life expectancy if they
reside in more affluent and educated cities.\19\
---------------------------------------------------------------------------
\13\ Chetty, Hendren, and Katz, ``The Effects of Exposure to
Better Neighborhoods on Children: New Evidence from the Moving to
Opportunity Experiment,'' American Economic Review, April 2016.
Chetty and Hendren, ``The Effects of Neighborhoods on
Intergenerational Mobility I: Childhood Exposure and II: County-
Level Estimates,'' Quarterly Journal of Economics, 2018.
\14\ Pollack, Blackford, Du, et al. ``Association of Receipt of
a Housing Voucher With Subsequent Hospital Utilization and
Spending,'' JAMA, 322(21):2115-2124. doi:10.1001/jama.2019.17432,
2019.
\15\ Ludwig, Sanbonmatsu, Gennetian, et al. ``Neighborhoods,
obesity, and diabetes--a randomized social experiment,'' New England
Journal of Medicine; 365(16):1509-1519. doi:10.1056/NEJMsa1103216,
2011.
\16\ Chetty, Friedman, Hendren, Jones, Porter, ``The Opportunity
Atlas: Mapping the Childhood Roots of Social Mobility,'' NBER
Working Paper No. 25147 (Jan. 2020), available at <a href="https://opportunityinsights.org/paper/the-opportunity-atlas/">https://opportunityinsights.org/paper/the-opportunity-atlas/</a>.
\17\ Id.
\18\ Chetty, Hendren, Jones, and Porter, ``Race and Economic
Opportunity in the United States: An Intergenerational
Perspective,'' Quarterly Journal of Economics, Vol. 135, Issue 2,
711-783 (May 2020), available at <a href="https://opportunityinsights.org/paper/race/">https://opportunityinsights.org/paper/race/</a>.
\19\ Chetty, Stepner, Lin, Scuderi, Turner, Bergeron, and
Cutler, ``The Association Between Income and Life Expectancy in the
United States, 2001-2014,'' The Journal of the American Medical
Association, 315(16): 1750-1766 (2016).
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For these reasons, the proposed rule requires program participants
to not only identify areas that are segregated based on race and other
protected characteristics, but also areas (many of
[[Page 8527]]
them the same ones) that lack critical community assets. Such an
inquiry is vital to understanding how the neighborhood where someone
grows up in many ways determines their life outcomes, including for
example by perpetuating significant wealth gaps and health and
educational disparities and limiting the overall opportunities that
person may have. This is not intended to be a burdensome inquiry. In
many cases, it will be clear from local knowledge (including what is
gathered through community engagement) that disparities in community
assets exist.
This proposed rule also recognizes that there is a need to take a
balanced approach when devising ways to overcome fair housing issues.
The affirmatively furthering fair housing mandate is intended to
increase fair housing choice for persons of all protected class groups,
including those with limited income and economic resources. HUD also
recognizes that there are often economic factors affecting fair housing
choice, which include rising rents and displacement from existing
housing due to gentrification. Program participants, in undertaking a
balanced approach to overcome fair housing issues should consider the
impact of these economic factors. Affirmatively furthering fair housing
can involve both bringing investments to improve the housing,
infrastructure, and community assets in underserved communities as well
as enabling families to seek greater opportunity by moving to areas of
the community that already enjoy better community infrastructure and
community assets. Therefore, HUD's proposed rule supports program
participants' choice to engage in place-based activities, such as
preserving affordable housing in particular neighborhoods while making
complementary investments in other infrastructure and assets in those
neighborhoods, as well as those choices that promote mobility,
including housing mobility programs, in order to increase access to
well-resourced areas and opportunity for protected class groups that
have historically been housed in underserved neighborhoods.
The proposed rule calls on program participants to identify, and
over time remedy, unequal access to homeownership opportunities--which
is a more direct focus than was required under the 2015 AFFH Rule--
because of race, color, national origin, disability, or other protected
characteristics. Inequality in access to homeownership has created a
ballooning wealth gap among racial and ethnic groups. Homeownership is
generally the most traditional and stable way for a family to
accumulate wealth; however, this advantage has primarily been made
available only to White families, even today.\20\ As one researcher
described the results of a 2019 study, the median White family had
eight times the wealth of the median Black family and five times the
wealth of the median Latino or Hispanic family.\21\ It is clear that
eliminating discrimination from housing-related transactions today will
be insufficient to reduce the wealth gap created over many years.\22\
While some efforts are underway to remedy this wealth gap, research
also shows that current programs that incentivize homeownership may not
be designed in a manner that would result in a closing of the wealth
gap and an increase in access to homeownership opportunities for
persons of color, other protected class groups, and underserved
communities.\23\ There are myriad ways to reimagine how homeownership
incentives can be created and utilized to promote these opportunities
more fairly. Evaluating how homeownership can be incentivized,
including through public-private partnerships, and made a reality for
members of protected class groups and underserved communities may be
one way that program participants can affirmatively further fair
housing, and this proposed rule explicitly creates space for them to do
so.
---------------------------------------------------------------------------
\20\ See McCargo and Choi, ``Closing the Gaps: Building Black
Wealth through Homeownership,'' Urban Institute (2020), available at
<a href="https://www.urban.org/research/publication/closing-gaps-building-black-wealth-through-homeownership/view/full_report">https://www.urban.org/research/publication/closing-gaps-building-black-wealth-through-homeownership/view/full_report</a>.
\21\ Schuetz, ``Rethinking Homeownership Incentives to Improve
Household Financial Security and Shrink the Racial Wealth Gap,''
Brookings Blueprints for American Renewal & Prosperity (2020),
available at <a href="https://www.brookings.edu/research/rethinking-homeownership-incentives-to-improve-household-financial-security-and-shrink-the-racial-wealth-gap/">https://www.brookings.edu/research/rethinking-homeownership-incentives-to-improve-household-financial-security-and-shrink-the-racial-wealth-gap/</a>.
\22\ Id.
\23\ Id.
---------------------------------------------------------------------------
In addition to the wealth gap, other barriers to homeownership
exist for other protected class groups. For example, program
participants may identify--and then set goals to remedy--a lack of
accessible housing that prevents individuals with disabilities from
experiencing housing choice. A 2015 analysis of 2011 American Housing
Survey data found that this was a widespread challenge.\24\
---------------------------------------------------------------------------
\24\ Accessibility of America's Housing Stock: Analysis of the
2011 American Housing Survey (AHS), <a href="https://www.huduser.gov/portal/publications/mdrt/accessibility-america-housingStock.html">https://www.huduser.gov/portal/publications/mdrt/accessibility-america-housingStock.html</a>.
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D. Summary of Proposed Changes to HUD's July 16, 2015 Final Rule
a. Streamlined Analysis Will Reduce Burden
Under the 2015 AFFH Rule, program participants were required to use
an Assessment Tool to conduct their Assessments of Fair Housing (AFHs).
The Assessment Tool required them to address more than ninety questions
and rely on HUD-provided data, local data, and local knowledge to
answer all questions. The Assessment Tool also contained a list of over
forty contributing factors.\25\ The factors had to be identified and
prioritized for each fair housing issue based on the responses to the
questions and data analysis conducted.
---------------------------------------------------------------------------
\25\ Under the 2015 AFFH Rule, a contributing factor or fair
housing contributing factor was defined as ``a factor that creates,
contributes to, perpetuates, or increases the severity of one or
more fair housing issues. Goals in an AFH are designed to overcome
one or more contributing factors and related fair housing issues. .
.'' 24 CFR 5.152 (2015).
---------------------------------------------------------------------------
While the Assessment Tool had the worthwhile goal of ensuring that
program participants conducted a thorough analysis in accordance with a
standardized process, HUD now proposes a modified approach that is
intended to make it simpler for program participants to identify fair
housing issues and thus allow them to focus more of the planning
process on setting meaningful fair housing goals. While HUD continues
to believe that an analysis and evaluation of current and historic
circumstances in a program participant's community is necessary to
determine appropriate fair housing goals, and that such analysis must
be informed by data as well as local knowledge and community input,
such objectives can be achieved without requiring program participants
to undertake as much independent burden.
Accordingly, this proposed rule eliminates the required use of an
Assessment Tool and instead, in Sec. 5.154, sets out a streamlined
analysis that program participants must follow to develop their Equity
Plans. The required content, which is different for consolidated plan
participants and PHAs, consists of fewer questions than the Assessment
Tool, and HUD proposes to allow program participants to determine the
format for responding to the questions. HUD believes these questions
constitute the core of the fair housing inquiry that is required to
identify fair housing issues, including what may be causing those
issues, and set meaningful fair housing goals. HUD specifically
solicits comment below on
[[Page 8528]]
whether the questions in Sec. 5.154 are easily understood to require
this type of response and whether different or additional questions are
needed. HUD believes that a more flexible format will allow program
participants to tailor responses to local needs and priorities. The
proposed rule still requires program participants to ground their
analysis in HUD-provided data, local data, and local knowledge
(including information obtained during the community engagement
process), but does not require a program participant to provide a
complete description of the data analyzed in response to each question.
Instead, the written responses to the questions should describe the
fair housing issues and their causes present in the program
participant's geographic areas of analysis, and describe the key
sources of information relied upon in fair housing issues and their
causes sufficiently to ensure that responses are grounded in data and
local knowledge.
By streamlining the written analysis, HUD believes the proposed
rule will reduce burden for program participants in conducting their
Equity Plans, will result in clearer and more direct identification of
fair housing issues, and will allow program participants and their
communities to place greater focus on the real task at hand--setting
and implementing fair housing goals that are tailored to overcome the
fair housing issues they collectively face. HUD also believes that the
streamlined written analysis that focuses more on identifying fair
housing issues and related causes will enable more program participants
to establish meaningful fair housing goals that are concrete and
measurable without the need for consultants and contractors.
For similar reasons, HUD is also eliminating the need to identify
and prioritize factors contributing to fair housing issues as part of
the required analysis within each section of the Assessment Tool
provided under the 2015 AFFH Rule. While the lists of contributing
factors included in the 2015 AFFH Rule's Assessment Tool were intended
to help program participants set meaningful goals to remedy fair
housing issues by first requiring them to identify the causes of those
issues, HUD's experience in implementing the 2015 AFFH Rule showed that
this step led to confusion without leading to the development or
implementation of meaningful fair housing goals. Program participants
are still required to assess the underlying reasons for the fair
housing issues they face as part of determining the best and most
effective approaches for overcoming them, though HUD believes the
approach taken under the 2015 AFFH Rule did not function as initially
envisioned.
Ultimately, because of this proposed rule's emphasis on outcomes,
HUD believes it will be unnecessary for program participants to rely on
contractors, consultants, or other experts that may be needed for a
heavily data-driven written analysis. At the same time, HUD believes
the simplified analysis still requires the core fair housing analysis--
including engagement with the data provided by HUD--to drive meaningful
goal setting.
b. Revised Fair Housing Planning Procedures Will Simplify
Implementation, Reduce Burden, and Increase Transparency
This proposed rule modifies many of the procedures for how fair
housing planning is implemented by program participants and their
submissions reviewed by HUD compared to the 2015 AFFH Rule based on
HUD's own experiences and the feedback of stakeholders regarding their
experience with the 2015 AFFH Rule worked in practice.
First, while HUD's 2015 AFFH Rule was designed to provide program
participants with maximum flexibility for how to collaborate on an AFH,
the two different types of collaboration (joint program participants
and regionally collaborating program participants) proved unnecessarily
confusing. HUD is proposing to maintain the flexibilities for program
participants to collaborate on their Equity Plans, while simplifying
the actual procedures for those collaborations.
Second, the 2015 AFFH Rule provided for only 60 days for HUD's
initial review of a submitted AFH and required program participants to
have an accepted AFH for their consolidated plan, annual action plan,
or PHA Plan to be approved, which in turn meant that the failure to
have an accepted AFH could result in the loss of funding for program
participants and their communities. In practice, this created
unnecessary pressure on HUD and program participants to ensure that an
AFH was accepted in a relatively short period of time to avoid risking
funding that is designed to help low-income families and underserved
communities. This timing also limited the extent to which HUD could
work with program participants to revise a submitted plan to ensure
full compliance with the rule and put program participants on a path to
meaningful fair housing achievements. HUD has revised these procedures
in several ways to allow a fuller review and revision process that
ultimately results in compliant Equity Plans and meaningful actions by
program participants that implement fair housing goals. HUD proposes to
increase the review period for submitted plans from 60 to 100 days,
providing HUD with more time to work with all program participants to
improve their Equity Plans after submission to ensure the Equity Plan
meets the regulatory requirements set forth in this proposed rule. The
proposed rule provides that HUD can extend that review period for good
cause. The proposed rule provides that if a program participant does
not have an accepted Equity Plan, HUD may approve a consolidated plan
or PHA Plan but only if the program participant furnishes special
assurances that require the program participant to achieve an Equity
Plan that meets the requirements of this proposed rule within 180 days
of the end of HUD's review period for the consolidated plan or PHA
Plan, as applicable, and that require the program participant to then
amend the consolidated plan, annual action plan, or PHA Plan upon HUD's
acceptance of the Equity Plan. As a result, HUD will have a clear
mechanism to remedy noncompliance with the requirement to have an
accepted Equity Plan, including the ability to take a range of actions
(up to and including the cut-off of Federal funding where appropriate)
against program participants who fail to provide or comply with such
special assurances. HUD's expectation is that review of most Equity
Plans will conclude with an acceptance, but the additional available
procedures contained in this proposed rule provide mechanisms for HUD
to take a progressive series of steps to obtain compliance in cases
where this expectation is not met.
Third, while the 2015 AFFH Rule endeavored to align the AFH with
program participants' other planning cycles, HUD recognizes that this
approach led to difficulty for program participants in determining the
date by which their AFHs were required to be submitted. This proposed
rule, while still generally aligning Equity Plan cycles with other
program cycles, contains clearer submission deadlines to allow program
participants and the public to know with certainty when an Equity Plan
will be due to HUD. Furthermore, program participants will have more
time to prepare and refine their Equity Plans. HUD also expects to
provide more robust technical assistance throughout the planning
process. Based on this, and the changes to the required analysis
explained throughout this preamble, HUD believes
[[Page 8529]]
it will be unnecessary for program participants to rely on contractors,
consultants, or other experts that they may have chosen to use under
the 2015 AFFH Rule. HUD is committed to building stronger partnerships
with its program participants in order to fully implement the AFFH
mandate.
Fourth, the 2015 AFFH Rule required program participants to report
on their progress in subsequent AFHs--essentially, once every five
years. HUD believes both that program participants should provide more
regular progress updates and that they may need greater flexibility to
adjust, revise, or reposition their fair housing goals on a more
regular basis, particularly if program participants achieve their goals
and need to establish new ones. HUD also believes that transparency
around this progress evaluation is necessary to ensure that the
community and members of the public are aware of the progress being
made, including whether there are obstacles preventing progress from
occurring. For this reason, HUD has included the requirement that, as
part of their Equity Plans, program participants submit to HUD annual
progress evaluations that summarize the status of the implementation of
the fair housing goals. HUD does not anticipate that these progress
evaluations will be long documents and expects many program
participants could meet this requirement in a one- or two-page summary.
HUD will also post these annual progress evaluations on its public AFFH
web page to maximize the transparency of the progress being made. At
the same time, the proposed rule provides a mechanism for program
participants to seek revision of their established goals at these
annual checkpoints.
Finally, the 2015 AFFH Rule's review process was not transparent
enough to allow the public to know why HUD accepted or did not accept
an AFH. This proposed rule creates a more transparent review process,
pursuant to which submitted Equity Plans will be posted on HUD's AFFH
web page, the public will have the opportunity to comment on submitted
plans (as described further below), and HUD will publish its decisions
on Equity Plan submissions. HUD believes that increasing the
transparency around its review of Equity Plans will promote engagement
by members of the public in the fair housing planning process and will
serve to keep HUD and its program participants accountable for meeting
their obligation to affirmatively further fair housing. Ultimately, HUD
believes that, by having a transparent process, program participants
will be better positioned to implement the fair housing goals
established in their Equity Plans because their communities will be
better equipped to contribute and hold program participants
accountable.
c. Modified Community Engagement, Consultation, and Publication
Requirements Will Increase Transparency
HUD recognizes that transparency and inclusion are necessary
components of implementing the AFFH rule in a manner that ensures that
the people the rule is meant to help have a significant voice in
shaping outcomes. In this proposed rule, HUD offers modifications to
what the 2015 AFFH Rule termed ``community participation''--in the now
revised ``community engagement'' section at Sec. 5.158--to include
requirements that HUD believes are more likely to lead to broader
engagement, particularly by members of protected class groups and other
underserved communities who have historically been excluded from these
types of discussions. The proposed rule would also require consultation
with various types of organizations, such as Fair Housing Assistance
Program agencies and Fair Housing Initiative Program grantees, and
other groups representing underserved communities, which include
organizations that advocate on behalf of individuals with disabilities
such as Centers for Independent Living, Protection & Advocacy Agencies,
Aging and Disability Resource Centers, and Councils on Developmental
Disabilities, among others. In addition, HUD will require program
participants to hold multiple community meetings, at different times of
day, and in different locations throughout the jurisdiction to account
for the needs of shift workers, families requiring childcare, and
individuals with disabilities, among others. Ensuring that all members
of a community have a say in the identification of fair housing issues
and deciding how available resources are allocated is the first step
toward advancing equity for everyone.
HUD intends to maintain an AFFH web page where all submitted Equity
Plans will be posted for public view. The AFFH web page will include
public posting of whether HUD has accepted or has not accepted a plan,
as well as the annual progress evaluation that program participants
submit. HUD believes that creating a central public site where all of
this information can be easily viewed will improve public engagement in
the planning and implementation process by enabling community members
to provide HUD with additional information that may be pertinent to its
review, and to hold program participants accountable for implementing
the fair housing goals established in their accepted Equity Plans. HUD
may publish submitted Equity Plans or portions of such plans on other
HUD-maintained web pages for the purposes of disseminating best
practices and in a searchable information clearinghouse to benefit
program participants and the general public.
d. New Complaint and Enforcement Mechanisms Will Enhance HUD's Ability
To Ensure AFFH Compliance
While the proposed rule continues to focus on planning and goal
setting, HUD is proposing to add a complaint and enforcement mechanism
to help ensure that program participants comply with their duty to
affirmatively further fair housing. This proposed rule, at Sec. Sec.
5.170 through 5.174, would permit the filing of complaints, and for HUD
to open a compliance review in response to a complaint or on its own
initiative, about: a program participant's failure to comply with the
requirements of the proposed rule; failure to comply with an Equity
Plan commitment; or any action that is materially inconsistent with the
obligation to affirmatively further fair housing as defined in this
proposed rule. This proposed rule would set out how HUD will
investigate complaints and conduct compliance reviews and the available
mechanisms for HUD to enforce compliance when a program participant is
found in noncompliance and voluntary resolution cannot be obtained. HUD
has modeled these procedures after existing regulations that implement
Federal civil rights laws, particularly those that apply to recipients
of Federal financial assistance such as title VI of the Civil Rights
Act of 1964 and section 504 of the Rehabilitation Act of 1973, and
therefore are familiar to program participants, all of whom are
recipients of Federal financial assistance from HUD. See 24 CFR parts 1
(Title VI) and 8 (Section 504).
The 2015 AFFH Rule did not include any explicit mechanism for
members of the public to file complaints with HUD regarding a program
participant's failure to comply with the requirements of the regulation
or for HUD to undertake a review of a program participant's compliance.
Instead, the primary enforcement tools were HUD's ability to reject a
submitted Assessment of Fair Housing or challenge a program
participant's certification that it would affirmatively further fair
housing. These tools alone proved to be insufficient
[[Page 8530]]
because they triggered drastic remedies (such as the suspension or
termination of funding) that limited their practical use for ensuring
compliance. HUD uses complaint and compliance review processes as one
of the standard ways it ensures that program participants satisfy other
civil rights obligations that attach to Federal funding and has used
complaint processes in other HUD programs as a means to increase
compliance. HUD proposes to establish a complaint and compliance
process for AFFH, based on its experience implementing the 2015 AFFH
Rule, feedback it received from stakeholders in listening sessions, the
urgent need to address the systemic inequities in housing, and HUD's
belief that community members are well positioned to provide important
information regarding whether program participants are meeting their
commitments made in the planning process and their duty to
affirmatively further fair housing more generally. While HUD proposes
to implement an enforcement mechanism for program participants who fail
to fulfill the AFFH obligation, HUD understands that certain
enforcement mechanisms such as withholding funds could have substantial
impacts on consolidated plan program participants and PHAs and the
people that they serve. The proposed rule would provide HUD with the
ability to tailor remedies appropriately for particular circumstances.
In particular, HUD does not intend to take actions that would adversely
impact families participating in HUD's assisted housing programs, and
is cognizant of the potential for such adverse effects from
conditioning the disbursement of funds for public housing programs
under section 8 or section 9. HUD would maintain a range of enforcement
options that can ensure compliance, including finding a PHA in default
of the Annual Contributions Contract if the circumstances require.
HUD does not intend this complaint and compliance review process to
supplant the planning process as the principal means by which HUD and
its program participants will implement the AFFH obligation and by
which the community will have input into how AFFH compliance takes
place. The proposed rule provides for public input at multiple points
in the planning process, including while the program participant is
developing its Equity Plan and while HUD is reviewing a submitted
Equity Plan. HUD expects that interested members of the public will
actively participate in the community engagement process and raise
concerns in that forum about a program participant's identification of
fair housing issues or establishment of fair housing goals. It also
expects that any concerns the public has regarding a submitted Equity
Plan will be provided during HUD's review of the Equity Plan, since the
proposed rule permits members of the public to submit such information
at that time. HUD will not treat information submitted regarding an
Equity Plan HUD is reviewing as a complaint to be investigated; rather
it will consider it as additional information that may be relevant to
HUD's review of whether the Equity Plan conforms to this rule's
requirements. HUD anticipates that these opportunities for the public
to participate in the Equity Plan process will reduce the need to
resort to the complaint process.
HUD also does not intend the complaint process to be a forum to
challenge program participants' day-to-day activities that have little
nexus to the AFFH obligation. Program participants are on notice of the
types of actions that would be materially inconsistent with their
obligation to affirmatively further fair housing because of prior
guidance provided by HUD (e.g., the 2015 AFFH Rule, the Fair Housing
Planning Guide, the 2015 AFFH Rule Guidebook, and caselaw, including
that cited above, interpreting the AFFH mandate).\26\ HUD, nonetheless,
also commits to providing further guidance as to the alleged conduct
that HUD will accept as meriting an investigation. HUD's experience in
administering other civil rights statutes with similar complaint and
compliance review processes indicates that program participants will
not be subject to investigations or sanctions arising from frivolous
complaints regarding actions that do not actually implicate AFFH
compliance. Additionally, HUD observes that the lack of an explicit
administrative process that both permits the public to file complaints
and authorizes HUD to investigate and take necessary corrective action
has not always permitted program participants to avoid such claims.
Rather, such allegations have been channeled into False Claims Act
suits and other lawsuits or complaints of violations of other laws
against program participants that sometimes required enforcement of
AFFH in unpredictable ways. HUD has also used its authority to ensure
program participant compliance with the Fair Housing Act to investigate
and conciliate complaints of AFFH obligations even in the absence of an
explicit process. HUD believes it will benefit program participants and
the Department to have a regular and defined administrative process for
its consideration of such complaints. As described below, HUD is
specifically soliciting comment on how it can most effectively
institute a complaint and compliance review process to provide as much
notice as possible regarding the proper subjects of complaints and
compliance reviews and ensure that program participants will not be
subjected to frivolous complaints that are not directly tied to the
program participant's obligation to affirmatively further fair housing.
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\26\ The Fair Housing Planning Guide and 2015 AFFH Rule
Guidebook are available at the Office of Fair Housing and Equal
Opportunity's (FHEO) AFFH web page <a href="https://www.hud.gov/AFFH">https://www.hud.gov/AFFH</a>.
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e. Changes in Definitions Related to the Fair Housing Analysis Will Add
Clarity to and Focus on Core Fair Housing Concepts
As described above, the proposed rule eliminates the need for a
separate Assessment Tool and instead sets out the simplified fair
housing analysis required of program participants. Many of the
definitions in this proposed rule therefore reflect some aspects of
that analysis. HUD has eliminated or modified certain definitions from
the 2015 AFFH Rule in this proposed rule to provide program
participants and the public greater clarity regarding what the
obligation to affirmatively further fair housing encompasses and what
HUD's expectations are for its funding recipients. Additionally, HUD
believes that by creating these new definitions that they will provide
additional information and clarity regarding this proposed rule and the
topics that program participants are expected analyze. The new
definitions include:
<bullet> ``Affordable housing opportunities,'' which refers to
whether members of protected class groups and underserved communities
have equitable access to housing that is affordable to them, including
with respect to where such housing is located, whether it meets the
needs of families of different sizes, whether it meets the
accessibility needs of individuals with disabilities, whether it
affords access to opportunity, including community assets, and whether
there are factors that adversely affect access to affordable housing,
specifically, but not limited to, rising rents, evictions, source of
income discrimination, loss of existing affordable housing;
<bullet> ``Balanced approach,'' which refers to HUD's
acknowledgement of the balancing of various approaches
[[Page 8531]]
program participants can employ when undertaking community planning and
investments, which results in the balancing of a variety of actions to
eliminate the housing-related disparities that result from persistent
segregation or lack of integration, the lack of affordable housing in
well-resourced areas of opportunity, the lack of investment in
community assets in R/ECAPs and other high-poverty areas, and the loss
of affordable housing to meet the needs of underserved communities. The
proposed definition would make clear that both place-based and mobility
strategies are part of a balanced approach necessary to achieve
positive fair housing outcomes. A program participant that has the
ability to create greater fair housing choice outside segregated, low-
income areas should not rely on solely place-based strategies;
<bullet> ``Community assets,'' which refers to the types of assets
that are often not equitably distributed and available within
communities, such as high quality schools, equitable employment
opportunities, reliable transportation services, parks and recreation
facilities, community centers, community-based supportive services, law
enforcement and emergency services, healthcare services, grocery
stores, retail establishments, infrastructure and municipal services,
libraries, and banking and financial institutions;
<bullet> ``Equity or equitable,'' which refers to the consistent
and systematically fair, just, and impartial treatment of all
individuals, including individuals who are members of protected class
groups or parts of underserved communities that have been denied such
treatment, as well as persons otherwise adversely affected by
persistent poverty or inequality;
<bullet> ``Publication,'' which refers to how HUD will maintain web
pages to publicly post Equity Plan materials to enhance transparency
and provide opportunities for communities to learn from one another and
benefit from the innovative thinking of others;
<bullet> ``Underserved communities,'' which refers to the remedial
nature of the AFFH mandate so that groups or classes of individuals, as
well as geographic communities who have historically had inequitable
access to housing, education, transportation, economic, and other
important opportunities, including community assets, within the program
participant's jurisdiction, and HUD would require program participants
to take them into account to ensure communities overcome the systemic
perpetuation of inequity.
HUD believes that building these definitions and others into the
proposed rule itself more directly articulates HUD's expectations for
how program participants can comply with this proposed rule and the
AFFH mandate than leaving such matters to a separate assessment tool as
the 2015 AFFH Rule did.
f. Conforming Amendments to Program Regulations Are Necessary for
Consistency With This Proposed Rule
This proposed rule contains conforming amendments to program
regulations at 24 CFR parts 91, 92, 93, 570, 574, 576, 903, and 983 in
order to ensure consistency between this proposed rule and the
implementation of programmatic requirements for States, local
governments, insular areas, and PHAs. Because HUD and its program
participants are required to administer all programs and activities in
a manner that affirmatively furthers fair housing, establishing
consistent mechanisms in these regulatory provisions is necessary to
ensure that program participants are positioned to fulfill this
obligation.
E. Conclusion
The opportunity to choose where one lives free from barriers or
inequities related to race, color, religion, sex, national origin,
familial status, or disability is at the very heart of the Fair Housing
Act's AFFH mandate. That obligation is meant to ensure that Federal
money, which for too long was used to perpetuate segregation and impose
discriminatory policies, is instead used to dismantle the enduring
legacy of that history. This proposed rule's implementation of the Fair
Housing Act's AFFH mandate requires that communities confront and
commit to changing historic and ongoing discriminatory practices and
policies, engage in proactive planning for the use of Federal funds to
ensure funds are used equitably, and implement meaningful actions that
affirmatively further fair housing. The new regulation carries forward
the core planning process of the 2015 AFFH Rule, and HUD anticipates
that the plans generated by this proposed rule will drive how HUD funds
will be used to advance equity and affirmatively further fair housing.
The proposed rule also modifies some aspects in order to make the
process more user-friendly and less burdensome for program
participants, and more accessible and transparent to the public. HUD's
objective in this proposed rule is to provide greater support for
program participants in performing the necessary analysis and otherwise
meeting their obligations, while requiring more inclusion in the
planning process for communities that historically have had too little
say in it; more transparency for the public as to the decisions that
have been made; and more regular progress reporting and opportunity to
change course to reflect changed circumstances.
HUD is committed to taking active measures to work with its program
participants to develop innovative and consequential ways to
affirmatively further fair housing. For those program participants that
take the AFFH obligation seriously, HUD anticipates that this rule will
be simpler and less burdensome to follow, and that program participants
will find HUD to be a helpful partner as they engage their communities
and seek creative ways to remedy fair housing issues that have too long
been ignored. For those that do not, HUD proposes changes that are
intended to make its review process more robust and to otherwise
provide for vigorous enforcement to ensure that the AFFH mandate is
implemented. Based on the lessons learned from the implementation of
the 2015 AFFH Rule, this proposed rule builds on that rule's successes
and offers a more streamlined, effective approach to empower program
participants and their communities to make informed decisions based on
local circumstances to advance equity and affirmatively further fair
housing.
III. Summary of Proposed Rule
This rule proposes to amend the regulations in 24 CFR parts 5, 91,
92, 93, 570, 574, 576, 903, and 983 as discussed in this section.
Affirmatively Furthering Fair Housing Regulation
This proposed rule would amend HUD regulations in 24 CFR part 5,
subpart A, which contains generally applicable definitions and
requirements that are applicable to all or almost all HUD programs.
This rule proposes to amend existing subpart A by adding new Sec. Sec.
5.150 through 5.180 under the undesignated heading of ``Affirmatively
Furthering Fair Housing.'' These revised or new sections will provide
the regulations that will govern how States, local governments, insular
areas, and PHAs comply with their statutory obligation to affirmatively
further fair housing, but reserves additional sections in subpart A for
HUD to continue to provide regulations that will assist all HUD program
participants in more effectively affirmatively furthering fair housing.
[[Page 8532]]
Affirmatively Furthering Fair Housing: Purpose (Sec. 5.150)
Revised Sec. 5.150 states that the purpose of the AFFH mandate in
the Fair Housing Act is to ensure that Federal funds are used in a
manner to overcome the legacy of public and private policies and
practices that intentionally or unintentionally have created segregated
communities and inequities for people of color and other groups because
of the characteristics the Act protects. The purpose of HUD's AFFH
regulation is to provide program participants with an effective
approach to aid program participants in identifying and taking
meaningful actions to overcome historic patterns of segregation,
promote fair housing choice, eliminate inequities in access to housing
and related opportunities caused by policies or actions that
discriminated on the basis of protected class, and foster inclusive
communities that are free from discrimination. The new AFFH regulation
is intended to provide a straightforward approach for program
participants to advance equity in their communities using Federal
financial assistance from HUD, while ensuring that HUD has a mechanism
to enforce the mandate.
Affirmatively Furthering Fair Housing: Application (Sec. 5.151)
New Sec. 5.151 provides the general applicability of AFFH
requirements as it applies to all of HUD's programs and activities and
makes clear that Sec. Sec. 5.150 through 5.180 in subpart A also
imposes a planning requirement on certain program participants.
Definitions (Sec. 5.152)
New Sec. 5.152 provides the definitions that are used for purposes
of the AFFH regulation and conforming amendments to existing program
regulations. HUD has preserved and modified some of the following
definitions that were included in the 2015 AFFH Rule (and in certain
instances the AFFH IFR), which include ``Affirmatively furthering fair
housing,'' ``Community engagement'' (formerly ``Community
Participation''), ``Data,'' ``Disability,'' ``Fair housing choice,''
``Fair housing issue,'' ``Geographic area,'' ``Integration,'' ``Local
knowledge,'' ``Meaningful actions,'' ``Protected characteristics,''
``Protected class,'' ``Racially or ethnically concentrated areas of
poverty,'' ``Region,'' ``Segregation,'' and ``Significant disparities
in access to opportunity.'' New terms defined in this section include
``Affordable housing opportunities,'' ``Analysis of Impediments to Fair
Housing Choice,'' ``Balanced approach,'' ``Community asset,'' ``Equity
or equitable,'' ``Equity Plan,'' ``Fair housing gals,'' ``Fair housing
goal categories,'' ``Fair housing strategies and actions,'' ``Funding
decisions,'' ``Publication,'' ``Publicly supported housing,''
``Responsible Civil Rights Official,'' ``Reviewing Civil Rights
Official,'' ``Siting decisions,'' ``Underserved communities,'' and
``Well-resourced areas.''
The definition of ``affirmatively furthering fair housing''
explains program participants' obligations under the Fair Housing Act
as described throughout this preamble. This definition provides greater
clarity than the definition contained in the 2015 AFFH Rule and the
AFFH IFR by expressly stating that the duty to affirmatively further
fair housing extends to all of a program participant's activities,
services, and programs relating to housing and community development;
it extends beyond a program participant's duty to comply with Federal
civil rights laws and requires a program participant to take actions,
make investments, and achieve outcomes that remedy the pervasive
segregation and disparities the Fair Housing Act was designed to
redress.
The definition of ``affordable housing opportunities'' is included
in this proposed rule to assist program participants in identifying
whether and in which areas of their communities members of protected
class groups lack access to affordable housing opportunities. The
definition also includes that the housing must comply with
affordability and habitability requirements. This definition also
includes the broader concept of whether members of protected class
groups and underserved communities have equitable access to housing
that is affordable to them, including with respect to where such
housing is located and whether it affords access to opportunity,
including community assets. HUD anticipates that this definition, as
incorporated into the analysis required by Sec. 5.154, will provide a
connection between housing affordability, protected characteristic, and
access to other opportunities, such as community assets. This
definition accounts for whether housing stability for protected class
groups is adversely affected by various factors, including rising
rents, loss of existing affordable housing, displacement due to
economic pressures, evictions, source of income discrimination, or code
enforcement. This definition also contemplates that individuals with
disabilities who need accessible housing have affordable housing
opportunities that meet their needs in areas of their community that
also afford access to opportunity. HUD notes that HUD is not changing
the standard for HUD-assisted housing in program regulations with the
inclusion of this definition for purposes of the Equity Plan analysis.
By assessing where affordable housing is located in a community, as
well as who has been successful in accessing that housing, program
participants can better understand how the location of such housing, in
relation to community assets, promotes integration, provides access to
opportunity or is a barrier to such access, and whether there are laws,
policies, or practices in their jurisdictions that may impede the
provision of affordable housing in certain areas, such as well-
resourced areas. With this understanding, program participants will be
better positioned to set fair housing goals that can be designed and
reasonably expected to result material positive change. This definition
is not intended to align with HUD's programmatic requirements, and so
whether housing meets this definition does not speak to whether it
complies with programmatic rules.
The definition of ``Analysis of Impediments to Fair Housing
Choice'' provides context for the manner in which program participants
will meet their obligations to affirmatively further fair housing until
such time as they are required to submit an Equity Plan to HUD.
The definition of ``balanced approach'' is added to articulate
HUD's acknowledgement that different strategies for remedying fair
housing issues can be employed based on the facts and circumstances
specific to a program participant's community. Where a community has
been starved of investment, some may want to leave for other
communities, while others will want to bring those resources to bear to
improve the circumstances of where they live. Accordingly, HUD has
added this definition to ensure that program participants can adopt
different types of strategies that will meaningfully increase fair
housing choice in their communities, including by choosing from an
array of place-based strategies (e.g., the preservation of existing
affordable housing or increased investments in community assets) and
mobility strategies (e.g., improved housing counseling, assessing how
school assignments are made, or building affordable housing in well-
resourced areas). A combination of actions will likely be necessary in
most communities, which would include both place-based and mobility
strategies. The proposed rule requires
[[Page 8533]]
that a program participant's goals, taken together, meet the definition
of a balanced approach. HUD provides that place-based and mobility
strategies must be designed to achieve positive fair housing outcomes
(including accessibility for individuals with disabilities) and that a
program participant that has the ability to create greater fair housing
choice outside segregated, low-income areas should not rely solely on
place-based strategies. HUD believes that the vast majority of, if not
all, program participants will be able to set goals that rely on both
place-based and mobility-based strategies. HUD seeks specific comment
on whether this is a reasonable requirement for every program
participant and, if not, the specific circumstances under which it
would not be.
The definition of ``community assets'' is added to describe the
sorts of high-quality assets that are characteristic of communities
that have not suffered from disinvestment and that affect the quality
of housing opportunities. It is meant to be a non-exhaustive but
illustrative list of assets. Consideration of the location of and
access to community assets, by protected class, is an integral part of
the analysis of the Equity Plan, which HUD anticipates will allow
program participants to be better positioned to understand the specific
fair housing issues within their local communities. HUD does not intend
to require analysis of community assets to be particularly burdensome
and will provide data and technical assistance to support this
analysis.
The definition of ``community engagement'' is included to provide
program participants with a baseline understanding of what the
obligation, more specifically delineated at Sec. 5.158, entails.
The definition of ``disability'' in this proposed rule, as in the
2015 AFFH Rule, is intended to be consistent with other Federal civil
rights laws with which program participants must comply, such as
section 504 of the Rehabilitation Act of 1973 and the Americans with
Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of
2008. HUD incorporates by reference the definition of disability under
section 504 and the ADA, consistent with the Attorney General's
interpretations of that definition, see 28 CFR 35.108, for purposes of
the affirmatively furthering fair housing obligation under section
808(e)(5) so as to provide consistency and clarity to HUD program
participants, which are all already bound by the same definition under
those statutes.
The definition of ``equity or equitable,'' which is consistent with
Executive Order 13985, is intended to provide program participants with
a framework for how to assess their communities in a manner that is
fair, just, and impartial.
The definition of ``Equity Plan'' provides a less burdensome and
more straightforward approach to fair housing planning and replaces the
Assessment of Fair Housing that was required by the 2015 AFFH Rule. The
Equity Plan consists of the content included in Sec. 5.154, is
submitted to HUD for review, and includes an annual progress
evaluation. Program participants may submit an individual Equity Plan
or may partner with other program participants to submit a joint Equity
Plan, as provided for in Sec. 5.160.
The definition of ``fair housing goals'' sets forth how program
participants will overcome the fair housing issues identified in their
Equity Plans. ``Fair housing goals'' are designed to go beyond the
status quo in the program participant's community and result in
tangible, positive, and measurable fair housing outcomes. Each fair
housing goal will include a description of the fair housing issue it is
designed to overcome.
The definition of ``fair housing goal categories'' details the
seven categories for which program participants must establish fair
housing goals to overcome fair housing issues. The purpose of this
definition, and related provisions, is to help focus program
participants' prioritization of which identified fair housing issues
they will set goals to remedy. HUD understands that, in many cases, it
will be beyond the capacity of program participants to set goals to
remedy every identified issue in a single 5-year cycle. The fair
housing goal categories are intended to provide program participants
with a reasonable number of specific areas in which to focus their
goals. Program participants may address multiple fair housing issues
through a single goal, and doing so need not be difficult. Accordingly,
the proposed rule does not require a goal to be set for every
identified fair housing issue, but does require that a goal be set that
addresses issues in each of the seven fair housing goal categories,
which are outlined in Sec. 5.154(f). HUD believes these to be at the
core of the AFFH obligation.
The definition of ``fair housing issues'' is modified from the
definition in the 2015 AFFH Rule and provides the substantive areas of
analysis that program participants will assess in their Equity Plans
before setting fair housing goals. ``Fair housing issues'' now also
include such conditions as ongoing local or regional segregation or
lack of integration, racially or ethnically concentrated areas of
poverty, significant disparities in access to opportunity, inequitable
access to affordable housing opportunities and homeownership
opportunities, laws or ordinances that impede the provision of
affordable housing in well-resourced areas, evidence of discrimination
or violations of civil rights law or regulations related to housing,
and inequitable distribution of local resources, which may include
municipal services, emergency services, community-based supportive
services, and investments in infrastructure.
The definition of ``fair housing strategies and actions'' helps
clarify how program participants will implement the fair housing goals
established in their Equity Plans, including with respect to the
allocation of funding that may be necessary for purposes of achieving
the fair housing goals.
The definitions of ``funding decisions'' and ``siting decisions''
refer to a set of decisions that program participants make about the
allocation of HUD funds and other investments in their communities,
decisions that have contributed to inequity and segregation in the past
and that this proposed rule seeks to reorient in order to advance
equity and undo patterns of segregation going forward.
The definition of ``geographic area'' delineates the specific
levels of geographic areas of analysis that certain types of program
participants must undertake when conducting the analysis required in
the Equity Plan by Sec. 5.154. These largely restate the geographic
areas of analysis that were established by the 2015 AFFH Rule and the
various Assessment Tools that implemented it. HUD flags that while the
expected geographic area of analysis for State and insular areas
includes the whole State or insular area, including entitlement and
non-entitlement areas, this does not change existing requirements that
restrict States to using CDBG and other Community Planning and
Development funds only in non-entitlement areas.
The definitions of ``integration,'' ``segregation,'' ``racially or
ethnically concentrated areas of poverty,'' and ``significant
disparities in access to opportunity,'' are included because they are
necessary components of the required analysis in order to set and
implement meaningful fair housing goals. When appropriate, they
identify cross-references to other legal standards that are also
relevant to how these terms apply to specific classes protected under
[[Page 8534]]
the Fair Housing Act (e.g., integration and individuals with
disabilities).\27\
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\27\ In 1999, the United States Supreme Court issued the
landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999),
affirming that the unjustified segregation of individuals with
disabilities is a form of discrimination prohibited by title II of
the ADA. Following the Olmstead decision, there have been increased
efforts across the country to assist individuals who are
institutionalized or housed in other segregated settings to move to
integrated, community-based settings. As a result of the Olmstead
decision and the integration mandate of section 504 of the
Rehabilitation Act included in HUD's section 504 regulation at 24
CFR part 8, HUD has consistently recognized the great need for
affordable, integrated housing opportunities where individuals with
disabilities are able to live and interact with individuals without
disabilities, while receiving the health care and long-term services
and supports they need.
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The definition of ``homeownership opportunities'' is included in
this proposed rule so that program participants, in conducting their
analyses, consider whether members of protected class groups have
equitable access to homeownership in their jurisdictions, and if not,
to determine what barriers exist to attaining homeownership so that
fair housing goals can be established.
The definition of ``publication'' encompasses the posting of the
Equity Plan materials for review on a HUD-maintained web page, which
will facilitate transparency of the local decisions made and the HUD
review process. The public will be able to track the status of HUD's
review and provide feedback to HUD directly, and communities will be
able to learn and benefit from the innovative ideas of others.
The definition of ``publicly supported housing'' sets forth the
types of assisted affordable housing that program participants will
analyze. HUD is providing data regarding the location and demographics
of certain types of such housing, and program participants will also
rely on local data and local knowledge for other types of assisted
housing operated in the jurisdiction.
The definitions of ``Responsible Civil Rights Official'' and
``Reviewing Civil Rights Official'' clarify the Departmental official
with the authority to make determinations regarding a program
participant's Equity Plan and its compliance with its obligation to
affirmatively further fair housing under the Fair Housing Act.
The definition of ``underserved communities,'' which is consistent
with Executive Order 13985, includes groups or classes of individuals,
as well as geographic communities that disproportionately include
members of particular protected class groups, who have historically had
inequitable access to housing and other community assets.
The definition of ``well-resourced areas'' is included to emphasize
that program participants must assess which areas and whether the
residents who reside in such areas have high-quality and well-
maintained community assets (in view of local economic circumstances),
as defined in Sec. 5.152, which afford residents genuine access to
opportunity (e.g., infrastructure, high performing schools, economic
opportunity, etc.) as a result of public and private investments.
Equity Plan (Sec. 5.154)
New Sec. 5.154 sets forth the substantive requirement for program
participants to evaluate their communities in order to more effectively
affirmatively further fair housing and advance equity. This section
sets forth the seven areas of analysis, which will also serve as fair
housing goal categories for which program participants must establish
fair housing goals. HUD seeks comment on whether it is appropriate to
require every program participant to establish goals in each of the
seven categories.
The process described in this section consists of fewer questions
than previously required by the 2015 AFFH Rule to which program
participants must respond. The specific required questions are codified
in this section, but program participants have the flexibility to
conduct their Equity Plan in a manner and format that best suits their
local needs, so long as the required content is submitted to HUD. HUD
will provide program participants with data that include maps, tables,
and may include technical assistance that aids program participants in
conducting their analysis. HUD will also continue to provide the
existing mapping tools, first provided under the 2015 AFFH Rule, and is
exploring ways to improve those offerings and provide additional
relevant data. In addition, for purposes of the analysis related to
access to affordable housing opportunities, HUD will continue to
provide data to assist program participants in assessing disparities
among protected class groups based on factors of cost burden, severe
cost burden, overcrowding (particularly for large families), and
substandard housing conditions. HUD believes this approach will better
facilitate the discussions in communities around how to develop and
implement meaningful fair housing goals. While HUD's approach under the
2015 AFFH Rule often yielded meaningful fair housing goals, HUD now
understands that requiring all program participants to perform
extensive data analysis themselves and show their work in a written
submission (i.e., requiring program participants to recite back to HUD
what the HUD-provided data showed) may have impeded some program
participants' ability to focus on outcomes. HUD is now proposing to
simplify the required analysis and assist program participants in
understanding how to use the relevant data to identify fair housing
issues. This will allow program participants to place a greater
emphasis on developing fair housing goals, making investment and
funding decisions in furtherance of those fair housing goals, and
listening to members of the community who have historically lacked
equitable participation in such decisions. When establishing fair
housing goals, program participants may adopt a small number of goals
if such goals could ultimately result in outcomes that have a
significant impact toward advancing equity for protected class groups
by reducing the adverse effects of fair housing issues. HUD recognizes
that fair housing goals may be short-term, in that they can be achieved
relatively quickly, or long-term, in that they may take more than one
funding cycle, and that program participants may set both short- and
long-term goals in order to ensure that they ultimately affirmatively
further fair housing.
Paragraphs (a) and (b) of Sec. 5.154 provide the general
requirement to conduct and submit an Equity Plan, including the
obligation to engage the community in the development of the Equity
Plan. Paragraph (b) makes clear that certain portions of the analysis
may rely on local data, local knowledge, and information obtained
through community engagement, particularly if HUD is unable to provide
data for a specific topic required to be included as part of the
analysis. Paragraph (c) provides the general content that must be
included in a program participant's Equity Plan and the requirement to
incorporate the Equity Plan into subsequent planning documents such as
the consolidated plan, annual action plan, and PHA Plan (or any plan
incorporated therein) so that program participants can appropriately
allocate necessary funding for the implementation of fair housing
goals. Paragraph (d) provides the specific content the Equity Plan must
contain for local governments, States, and insular areas, including the
questions to which these program participants must respond. The
questions consist of: (1) demographics; (2) segregation and
integration; (3) R/ECAPs; (4) access to community assets; (5) access to
affordable housing opportunities; (6) access to homeownership and
economic
[[Page 8535]]
opportunity; and (7) local policies and practices impacting fair
housing. Paragraph (e) provides the specific content the Equity Plan
must contain for PHAs, including the questions to which PHAs must
respond. The questions consist of: (1) demographics; (2) segregation
and integration; (3) R/ECAPs; (4) access to community assets and
affordable housing opportunities; and (5) local policies and practices
impacting fair housing. As noted above, HUD welcomes comment on whether
these questions should be modified for the purposes of small PHAs or if
HUD should consider increased flexibilities PHAs can use to comply with
the Equity Plan requirement or alternative approaches HUD can use to
ensure that small PHAs comply with their obligations to affirmatively
further fair housing.
To assist program participants in conducting their Equity Plans'
analysis, HUD intends to continue providing data that program
participants can rely on to answer most of the questions that guide the
proposed rule's required analysis. Many program participants and
others, including researchers, found the raw data HUD provided under
the 2015 AFFH Rule to be invaluable. HUD is committed to continuing to
provide such data, to improving its current data and mapping tools
(e.g., the AFFH-T Data & Mapping Tool), and to building additional
tools and data products to further facilitate the fair housing
analysis. For example, HUD is contemplating developing a flexible data
tool for comparing the locations and demographics of publicly supported
housing with patterns of segregation and R/ECAPs. A version of this
tool is currently available in the AFFH-T Data & Mapping Tool, in the
``Query Tool'' option, and HUD would welcome feedback on potential
improvements to this functionality. Additionally, as previously
described, HUD is contemplating various ways to present this data to
program participants outside the AFFH-T interface and to provide
technical assistance, which may include explanations that assist
program participants in understanding how to use the data to identify
fair housing issues.
In addition, HUD intends to issue guidance and technical assistance
on how to conduct an Equity Plan analysis and set appropriate goals.
HUD intends to tailor this guidance to the various types of program
participants, including State agencies and smaller and rural PHAs and
consolidated planning agencies. HUD recognizes the wide range of
different types of housing and community and economic development
agencies that administer these vital programs at the State and local
level, and that many of them have unique geographies and jurisdictional
boundaries as well as unique data-related needs.
Program participants will already be familiar with several of the
key Equity Plan questions. For example, HUD notes that almost all
program participants will already be familiar with the analysis of
disparities in access to community assets and affordable housing
opportunities, including for protected class groups. To the extent the
proposed rule's analysis of ``affordable housing opportunities''
overlaps with analysis already conducted for the consolidated plan, and
often adopted also by PHAs, there is little additional burden on
program participants in conducting this part of the analysis in the new
Equity Plan. Similarly, new analysis conducted for the Equity Plan can
also inform similar parts of the consolidated plan and PHA Plans. HUD
recognizes that some program participants may not have direct expertise
to be able to fully answer some questions in the Equity Plan analysis
section, for example those asking about access to schools,
transportation, or employment opportunities. HUD expects that in
addition to HUD-provided data, program participants' use of local data
and local knowledge, including that gathered though the community
engagement process, will assist program participants with conducting
these analyses.
Many of the questions are intended to be an opportunity to solicit
informed feedback from the community, including local organizations
that already work in these spaces, to assist the program participant in
assessing disparities in access to community assets by protected class
groups. HUD expects the community engagement process may be
particularly helpful in consideration of certain aspects of the
analysis. HUD does not anticipate that questions relying primarily on
input from local data and local knowledge, which may be obtained
through the community engagement process, should pose any major
additional burden. As provided for in the proposed rule's definition of
``local data'' in Sec. 5.152, the proposed rule requires consideration
only of such data that ``can be found through a reasonable amount of
search [and] are readily available at little or no cost.'' To provide
one example, questions asking about ``underserved communities'' may not
require a granular, data-driven analysis in order to identify fair
housing issues. Rather, program participants are encouraged to actively
engage with these communities in order to obtain the information
necessary to conduct the analysis and to identify fair housing issues.
This includes opening dialogues and engaging with individuals
experiencing homelessness, survivors of domestic violence, people with
criminal records, persons identifying as Lesbian, Gay, Bisexual,
Transgender, Queer + (LGBTQ+), individuals with disabilities, and
others who often have no established forum to inform local policymakers
of their issues and needs.
Some of the proposed rule's questions, in asking about changes in
demographics or economic trends, ask about a concept known to many
stakeholders as ``gentrification.'' The term is used here because of
its common colloquial use to facilitate the program participant's and
community's ease of understanding the concepts at issue in order to
have required discussion about community trends. HUD notes the robust
debate around the term ``gentrification'' and its impact on communities
in both social science research and among communities themselves, and
program participants can also consider such discussions in their
review. This proposed rule does not establish a HUD definition of
``gentrification,'' nor will program participants be required to
precisely define the term.
For questions that ask about ``livable wage jobs,'' while HUD
provides several data points that relate to employment, labor
participation, and proximity to jobs, it acknowledges that the data may
not capture the full picture. Program participants may have local data
and local knowledge that addresses this, including information obtained
from local organizations that participate in the community engagement
process.
As noted above, HUD does not intend for program participants to
document the performance of an extensive data-driven analysis for most
questions, and instead intends for program participants to focus on
effective goal setting to address identified issues. The analysis in
the proposed rule is intended to facilitate a balanced approach by
permitting the identification of fair housing issues susceptible to
being remedied through a variety of policies. For example, if
disparities by protected class group are identified in the questions
regarding homeownership opportunities, responsive goals could include
specific policies to assist first-time homebuyers and expand
availability of affordable homeownership opportunities, such as new
construction of affordable single-family homes, downpayment assistance
[[Page 8536]]
using the HOME Investment Partnerships (HOME) program, or zoning code
reform. Similarly, an identified issue regarding lack of affordable
housing opportunities in certain areas could be remedied through goals
such as expanding rental availability through new placements of HOME,
Housing Trust Fund (HTF), and Low-Income Housing Tax Credits (LIHTC)
units, geographically targeted project-based vouchers, improved Housing
Choice Voucher mobility, or addressing unnecessary regulatory barriers
to affordable housing production, strengthening tenant protections, and
preservation efforts.
Paragraph (f) describes how program participants must identify and
prioritize the fair housing issues for each fair housing goal category.
In determining how to prioritize fair housing issues within each fair
housing goal category, program participants shall give highest priority
to fair housing issues that will result in the most effective fair
housing goals for achieving material positive change for underserved
communities, taking into account that different protected class groups
may be impacted by different fair housing issues. Paragraph (g) sets
the requirements for fair housing goals and for including fair housing
goals in the Equity Plan. This paragraph is intended to provide program
participants with greater clarity on what HUD will look for when an
Equity Plan is submitted for review, including whether the fair housing
goals, when taken together, are designed to overcome the effects of
each prioritized fair housing issue.
Broadly, the proposed rule requires program participants to set and
implement fair housing goals that are designed and can be reasonably
expected to result in a material positive change relating to the fair
housing issues that they are intended to address. HUD expects that, in
subsequent progress reports and planning cycles, program participants
will be able to point to the changes that have resulted from
implementation of the goals established in their Equity Plan. For
example, if a program participant has identified as an issue
segregation in certain areas of its jurisdiction and has set fair
housing goals to reduce that segregation, it should be able to point to
ways in which implementation of the fair housing goals have resulted in
or are in the process of resulting in a decrease in such segregation.
This does not mean that program participants must be able to report
changes that are occurring with statistically significant data.
HUD recognizes that fully remedying a fair housing issue will often
take substantial time and occur in incremental steps, spanning multiple
funding and Equity Plan cycles. Thus, HUD expects the fair housing
goals will result in material positive change even if that change will
be incremental, and it will take multiple funding cycles to fully
remedy the fair housing issue. For example, a program participant might
set a goal in its Equity Plan to supply 100 units of affordable housing
in a well-resourced area. Completing this fair housing goal might not
completely remedy the underlying fair housing issues (e.g.,
segregation) due to the size of the total population and existing
segregated residential patterns in the jurisdiction and region. In such
circumstances, if HUD accepts the program participant's Equity Plan and
the program participant accomplishes its fair housing goal of building
the 100 units, the program participant will have complied with its
Equity Plan obligation, but it will still be required to set additional
fair housing goals in future Equity Plan submissions to continue
tackling the fair housing issue of segregation.
HUD also understands that, with respect to many fair housing
issues, forces other than the program participant's actions may
influence the course of change. A program participant's fair housing
goal can be successful on its own terms even as it fails to accomplish
material positive change in terms of the underlying issue it was
designed to address. For example, a program participant might identify
the lack of affordable housing in well-resourced areas as an issue and
set a fair housing goal to eliminate barriers to the siting of
affordable housing in well-resourced areas. It might achieve that goal
by eliminating the identified barriers, and yet affordable housing is
not built in the areas in question for other reasons. In such
circumstances, the program participant will have satisfied its
obligation with respect to that fair housing goal and will not be
deemed to be out of compliance with its Equity Plan obligations. The
program participant will be expected to continue to set goals in
subsequent planning cycles to address the still existing fair housing
issue in ways that will accomplish the required material positive
change.
Paragraph (h) consists of additional content that is required for
the Equity Plan, including the community engagement process and the
submission of certifications and assurances. Paragraph (i) provides for
program participants and their communities to engage in an evaluation
of progress toward advancing equity following the acceptance of the
Equity Plan. For each Equity Plan submitted following the first Equity
Plan, program participants are permitted to provide their annual
progress evaluations in the aggregate as part of the overarching
progress evaluation required for each new Equity Plan. Paragraph (j)
provides for the publication requirement of the Equity Plan, which HUD
will facilitate, in order to increase transparency and allow for
program participants and the public to view all Equity Plan submissions
and view the Department's decisions regarding such plans. This will
allow communities to discover and consider the innovative ideas and
strategies other communities may be employing to advance equity in
meaningful ways. This paragraph also provides for a mechanism for the
public to submit information to HUD regarding the content of a
published Equity Plan.
Affirmatively Furthering Fair Housing Through Equity Plan Incorporation
Into Subsequent Planning Documents (Sec. 5.156)
New Sec. 5.156 more closely and directly ties the fair housing
goals established in the Equity Plan to the subsequent planning
processes program participants are required to undertake to ensure that
program participants adequately and appropriately undertake and fund
programs, services, and activities in a manner that advances equity and
affirmatively furthers fair housing. This will provide a more holistic
approach to the implementation of the AFFH mandate by requiring program
participants to embed fairness and equity into their decision-making
processes.
Community Engagement (Sec. 5.158)
New Sec. 5.158 sets forth the requirements for community
engagement as a key component of the development of the Equity Plan.
This section, along with conforming amendments to applicable program
regulations, provides program participants the flexibility to conduct
this process differently from how they conduct citizen participation
for the consolidated plan or annual action plan or the policies and
procedures PHAs use for the PHA Plan if they so choose. Program
participants' engagement with their communities in the development of
the Equity Plan requires the confrontation of difficult issues, and so
HUD is providing program participants with flexibility to determine how
best to facilitate those important conversations. HUD expects the
community engagement process to focus on the fair housing issues facing
communities, and
[[Page 8537]]
HUD further anticipates that by providing data, guidance, and technical
assistance to program participants regarding the fair housing issues
demonstrated by HUD-provided data, this focus on community engagement
as a source of critical information can be more easily maintained. The
community engagement process is intended to be a robust discussion
across all sectors of the community so that program participants can
make informed choices about how to overcome existing fair housing
issues, such as barriers to fair housing choice, and make equitable
funding decisions. This section also provides the Federal civil rights
requirements with which program participants must comply when
conducting in community engagement and permits program participants to
utilize the processes in their respective program regulations to
undertake these activities.
Submission Requirements (Sec. 5.160)
New Sec. 5.160 provides the requirements for the submission of the
Equity Plan to HUD, including how program participants may collaborate
to submit a joint Equity Plan to HUD, and provides the timeframes for
when a program participant's first Equity Plan will be due. The
timeframes for the first Equity Plan in this section are intended to be
straightforward and easily discernable so that program participants
have certainty as to when their obligation to conduct and submit an
Equity Plan is triggered. This section also provides for how and when
annual progress evaluations will be submitted as well as subsequent
Equity Plans. Further, until such time as an Equity Plan is due to HUD,
program participants must ensure they are engaging in fair housing
planning in a publicly transparent way and this section sets forth how
to meet that obligation.
Paragraph (a) allows program participants to collaborate and
conduct an Equity Plan (joint Equity Plan) with other program
participants (joint program participants), which may allow program
participants to pool resources in order to overcome fair housing issues
that cross jurisdictional lines. This paragraph sets out the
requirements for how program participants collaborate and the
obligations of each collaborating participant, as well as notification
to HUD of the intent to collaborate on an Equity Plan.
Paragraph (b) sets out the submission deadlines for consolidated
plan program participants. These deadlines are tied to the aggregate
amount of formula funding the program participant receives from HUD and
then is further keyed to the program year that begins on or after a
particular date. This paragraph thereby creates a tiered submission
schedule, in which the first group of consolidated plan program
participants that have an Equity Plan due will be all among the largest
such participants. HUD anticipates that this group is better positioned
to begin implementation, and the experiences of this first cohort will
allow for program participants of different sizes to benefit from
technical assistance from HUD during the course of implementation of
this proposed rule. Likewise, paragraph (c) sets out the submission
deadlines for PHAs based on the aggregate number of units and vouchers
the PHA administers, which are then keyed to the program year that
begins on or after a particular date. The first cohort of PHAs with an
Equity Plan due will also be among the largest PHAs, and their
experience will allow PHAs of different sizes to benefit from technical
assistance from HUD in advance of an Equity Plan submission.
Paragraph (d) requires, until such time as a program participant
must submit an Equity Plan to HUD, that the program participant engage
in fair housing planning and sets forth how to meet this obligation,
including what must be submitted to HUD and when such submissions are
required.
Paragraph (e) provides for the procedures that HUD will utilize in
order to determine when an Equity Plan is due for new program
participants. Paragraph (f) sets out the requirements for submitting
annual progress evaluations as part of the Equity Plan. Paragraph (g)
specifies the deadlines for subsequent Equity Plan submissions.
Paragraph (h) provides that program participants must submit an Equity
Plan to HUD no less frequently than every five years.
Paragraph (i) requires program participants to include
certifications and assurances as part of the Equity Plan submission to
HUD. These certifications and assurances are distinct from those
submitted in connection with an application for Federal financial
assistance.
Review of Equity Plan (Sec. 5.162)
New Sec. 5.162 provides the procedures and standard HUD will use
to review submitted Equity Plans. This provision sets forth the timing
for HUD's review and what may occur as a result of HUD's review--HUD
may accept the Equity Plan, extend the time for review for good cause,
or provide notice to the program participant that HUD does not accept
the Equity Plan and the reasons why. Specifically, HUD will have 100
calendar days from the date the Equity Plan is submitted to review the
plan. HUD's acceptance of an Equity Plan is not a determination of
whether the program participant has met its obligation to affirmatively
further fair housing under the Fair Housing Act and means only that the
program participant's submission appears to meet the requirements of
this proposed regulation.
Paragraph (a) sets out the process for review and what HUD's
acceptance of an Equity Plan means. Paragraph (b) sets out the standard
HUD will apply when determining to accept or not to accept an Equity
Plan--HUD will not accept the Equity Plan if any portion of it is
inconsistent with fair housing or civil rights requirements, which
includes but is not limited to any material noncompliance with the
requirements of Sec. Sec. 5.150 through 5.180. This paragraph provides
examples of reasons why HUD will not accept an Equity Plan. In the
event an Equity Plan is not accepted, paragraph (c) sets out the
procedures for program participants to revise and resubmit their Equity
Plan to HUD. Paragraph (d) provides ways HUD, at its discretion, can
incentivize and support program participants that establish ambitious
fair housing goals in their Equity Plans including for example
assisting program participants in securing additional resources for
implementing their fair housing goals and achieving positive fair
housing outcomes in their communities.
Paragraph (e) explains the procedures for when a program
participant does not have an accepted Equity Plan at the time their
consolidated plan or PHA Plan, as applicable, must be submitted to HUD.
As explained above, the proposed rule provides that a consolidated plan
or PHA Plan (or any plan incorporated therein) may be accepted under
such circumstances, but only if a program participant provides special
assurances that it will submit an Equity Plan that meets the regulatory
requirements within 180 days of the end of HUD's review period for the
consolidated plan or PHA Plan. HUD notes that failure to provide such
special assurances will lead to the disapproval of the applicable
programmatic plan. If the Secretary determines that there has been a
failure to fulfill the terms set out in the special assurances, the
Secretary will initiate the termination of funding, refuse to grant or
to continue to grant Federal financial assistance, or seek other
appropriate remedies. In addition, paragraph (e) explains that a
program participant's failure to provide or comply with special
assurances can provide the Secretary a basis to
[[Page 8538]]
challenge the validity of the program participant's AFFH certification
pursuant to Sec. 5.166. Finally, paragraph (e) specifies that the
procedures HUD will follow if there is a failure to comply are at Sec.
5.172 and that the special assurances are subject to the publication
requirement and will be made available on HUD's AFFH web page.
Revising an Accepted Equity Plan (Sec. 5.164)
New Sec. 5.164 sets out the minimum criteria for when an Equity
Plan must be revised--that is, when a material change occurs, upon
written notification from the Responsible Civil Rights Official
(Assistant Secretary for Fair Housing and Equal Opportunity or his or
her designee) specifying a material change that requires the Equity
Plan to be revised, or a program participant chooses to revise its
Equity Plan. Paragraph (a)(1)(i) provides examples of what a material
change would include, such as Presidentially declared disasters under
title IV of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act. A material change may occur because the program
participant's jurisdiction receives additional Federal financial
assistance, new fair housing issues emerge in the program participant's
jurisdiction, significant demographic changes occur in the program
participant's jurisdiction, or civil rights findings, determinations,
settlements (including Voluntary Compliance Agreements), or court
orders occur. Paragraph (a)(1)(ii) specifies that the Responsible Civil
Rights Official may notify program participants in writing that a
material change has occurred that requires revision. Paragraph (a)(2)
sets out the circumstances under which a program participant may choose
to voluntarily revise its previously accepted Equity Plan, with
permission from HUD. HUD intends that this provision be used by program
participants who face changed circumstances that make it difficult or
impossible to meet established fair housing goals or otherwise require
revisions to their Equity Plans. HUD does not intend this provision to
be used by program participants that simply fail to accomplish the fair
housing goals they established. Paragraph (a)(3) sets out the
requirements for a revised Equity Plan. Paragraph (b) establishes the
timeframes that will apply when revising an Equity Plan, paragraph (c)
requires the revised Equity Plan to be submitted to HUD for review, and
paragraph (d) requires that, once a revised Equity Plan has been
accepted by HUD, the program participant incorporate any revised fair
housing goals into their consolidated plan, annual action plan, PHA
Plan or any plan incorporated therein within 12 months of the date of
HUD's acceptance of the revised Equity Plan.
AFFH Certifications Required for the Receipt of Federal Financial
Assistance (Sec. 5.166)
New Sec. 5.166 requires program participants to provide
certifications as part of the submission of their required consolidated
plan, annual action plan, or PHA Plan, or any plan incorporated
therein, pursuant to 24 CFR parts 91 and 903, as applicable, that they
will affirmatively further fair housing in order to receive Federal
financial assistance from HUD.
Paragraph (a) of this section requires a certification that program
participants will affirmatively further fair housing and take no action
that is materially inconsistent with fair housing and civil rights
requirements throughout the period for which Federal financial
assistance is extended. These certifications are made in accordance
with applicable program regulations, specifically 24 CFR part 91 for
consolidated plan program participants and 24 CFR part 903 for PHAs.
Paragraph (b) sets out the policies and procedures for when and how
the Department will challenge the validity of an AFFH certification.
HUD will endeavor to voluntarily resolve any potential inaccuracy or
noncompliance with an AFFH certification that could result in the
disapproval of a consolidated plan, annual action plan, or PHA Plan,
and it expects recipients of Federal financial assistance to work
cooperatively with the Department to reach voluntary resolution when
there is a potential failure to comply with an AFFH certification or
the obligation to affirmatively further fair housing. In the event this
does not occur, this paragraph sets out the procedures HUD will use.
This paragraph also sets forth how the process will work if there is
evidence the program participant's certification is inaccurate. For
example, if the noncompliance cannot be voluntarily resolved, HUD may
set conditions on a grant for a consolidated planning program
participant (see e.g., 2 CFR 200.208) or reject the AFFH certification.
This paragraph also specifies how certifications may be challenged in
the context of joint Equity Plans with respect to one program
participant, but not necessarily all joint program participants.
Recordkeeping (Sec. 5.168)
New Sec. 5.168 requires program participants to maintain
sufficient records that would enable the Responsible Civil Rights
Official to determine whether the program participant has complied with
or is complying with their AFFH obligations. This provision permits
access to records by the Responsible Civil Rights Official to make such
a determination and sets out examples of the types of records program
participants should maintain in order to demonstrate their compliance
with this proposed rule. By providing examples of the types of records
HUD would expect program participants to maintain, HUD is providing
notice to program participants about how to best demonstrate their
compliance to HUD.
Compliance Procedures (Sec. 5.170)
New Sec. 5.170 creates a process that allows members of the public
to submit information to HUD alleging that a program participant has
failed to comply with this proposed rule or its Equity Plan, or that
the program participant has taken action that is materially
inconsistent with its obligation to affirmatively further fair housing,
as defined in this proposed rule. It then provides that, in response to
such a complaint or of its own accord, HUD may initiate an
investigation to determine the program participant's compliance
following procedures consistent with existing processes used for other
Federal civil rights statutory and regulatory requirements accompanying
the receipt of Federal financial assistance, such as title VI of the
Civil Rights Act of 1964 and section 504 of the Rehabilitation Act of
1973. See 24 CFR parts 1 (Title VI) and 8 (Section 504).
As described above, HUD does not intend the complaint process to be
used to relitigate decisions made by program participants in the
planning process after opportunity for community input and HUD's
acceptance of an Equity Plan. HUD specifically seeks comment on how it
can effectively implement a complaint and compliance review process
that works in tandem with the proposed planning process including
specific regulatory text that would be in accord with these principles.
HUD also seeks comment on whether and the extent to which setting out
an AFFH complaint and compliance review process is likely to facilitate
AFFH compliance. HUD recognizes that any investigation creates some
burden on program participants and seeks comment on ways HUD can
minimize the burden associated with an investigation while maintaining
a mechanism for effectively enforcing the Fair Housing Act's AFFH
mandate.
[[Page 8539]]
Paragraph (a)(1) provides for submission of complaints and
describes the permissible subject matter of such complaints. A
complaint must allege the failure to comply with a specified
requirement of this proposed rule; a failure to meet specific
commitments a program participant has undertaken in the Equity Plan; or
that the program participant has acted or is acting in a manner that is
materially inconsistent with its obligation to affirmatively further
fair housing, as defined in this regulation. This subject matter
restriction is intended to make clear that HUD does not view the
complaint process as a vehicle for general complaints about the
activities of HUD program participants that lack nexus to the AFFH
requirement.
With respect to allegations that a program participant is failing
to meet its Equity Plan commitments, HUD understands that accomplishing
the goals set out in Equity Plans will not always happen immediately.
Accordingly, the complaint process should not be used to attempt to
micromanage the pace and manner in which they are accomplished, so long
as program participants are continuing to make efforts to comply.
Similarly, a program participant's inability to meet an Equity Plan
commitment because of circumstances beyond its control will not be
treated as a violation, though the program participant will be expected
to disclose those circumstances in its annual progress evaluation and
should seek to modify the relevant portion of its Equity Plan. With
respect to claims that a program participant is acting in a manner that
is materially inconsistent with its AFFH obligation, that standard is
intended to mirror the certification that program participants make
regularly that they will take no action materially inconsistent with
that obligation. It is not intended to create any new substantive
requirement for program participants, but rather to provide a
manageable and predictable process to investigate and enforce
compliance with the existing AFFH obligation in a manner that does not
necessarily require HUD to challenge the validity of the certifications
submitted in connection with the receipt of Federal financial
assistance. There is no requirement that each individual action program
participants take be in furtherance of the AFFH obligation, but rather
program participants' actions must collectively affirmatively further
fair housing and they may not take actions that are materially
inconsistent with their obligation to affirmatively further fair
housing. Therefore, it generally would be insufficient for a
complainant to allege that a routine decision made or routine action
taken by a program participant does not affirmatively further fair
housing. HUD seeks comment on whether it should further clarify the
scope of permissible complaints, including by reference to specific
examples of subject matter that would or would not be the appropriate
basis of a complaint.
Paragraph (a)(2) further describes the procedures HUD will utilize
when a complaint regarding a program participant's obligation to
affirmatively further fair housing is received. Paragraph (a)(3)
provides that complaints shall be filed within 365 days of the date of
the last incident of the alleged violation, unless the Responsible
Civil Rights Official extends the time limit for good cause, such as
where the complaint concerns an alleged violation that took place more
than a year previously but was not disclosed to the public until more
recently.
Paragraph (b) sets forth the procedures HUD will utilize when it
initiates an investigation of either a complaint filed with the
Department or a review initiated by the Department, in order to
ascertain whether there has been a failure to comply with the program
participant's obligation to affirmatively further fair housing.
Paragraphs (b)(1) and (2) provide that the Responsible Civil Rights
Official will provide notice to the program participant of the
investigation, and may conduct interviews, request records, and obtain
other information required to determine whether there has been a
failure to comply. Paragraph (b)(3) provides that the Responsible Civil
Rights Official shall attempt informal resolution where appropriate. In
doing so, HUD will be mindful that program participants may have
multiple ways available to them to remedy an alleged violation. While
HUD believes it is helpful to provide a program participant with
suggested remedies to facilitate discussions of appropriate
resolutions, it does not intend to be prescriptive about the remedy a
program participant ultimately agrees to so long as it is adequate to
address the alleged violation. Paragraph (b)(3) also sets out the
process that will occur if an informal resolution with the program
participant cannot be achieved and a violation is found--the
Responsible Civil Rights Official will issue a Letter of Findings.
Paragraphs (b)(4) through (6) set out the required contents of a Letter
of Findings, including findings of facts and conclusions of law, a
description of a remedy for each violation found, and notice of the
rights and procedures under Sec. Sec. 5.172 and 5.174, which include
the right of the program participant or complainant (if any) to request
review of the Letter of Findings within 30 calendar days from the date
of issuance and the procedures for such a review.
Paragraph (c) provides that the mechanism for informal resolution
of matters is through either the execution of a Voluntary Compliance
Agreement between the program participant and HUD, which may occur at
any stage of processing of the matter, or, in appropriate
circumstances, the Responsible Civil Rights Official may seek, in lieu
of a Voluntary Compliance Agreement, assurances or special assurances
of compliance.
Paragraph (d) makes it a violation of this proposed rule for a
program participant or other person to intimidate, threaten, coerce, or
discriminate against any person for the purpose of interfering with any
right or privilege secured by this proposed rule or the Fair Housing
Act because of testimony, assistance, or participation in any manner in
the filing of a complaint, an investigation, proceeding, or hearing
under Sec. Sec. 5.150 through 5.180. HUD takes seriously allegations
of retaliation and will investigate such claims.
The provisions above are largely modeled on existing HUD
regulations with respect to complaints regarding and enforcement of
civil rights requirements that attach to the receipt of Federal
financial assistance, such as Title VI and Section 504. HUD has used
those regulations as a model because they are familiar to HUD and to
program participants. HUD seeks comment on whether any modifications to
these procedures are appropriate for purposes of considering alleged
violations of the AFFH obligation.
Procedures for Effecting Compliance (Sec. 5.172)
New Sec. 5.172 sets forth the procedures HUD will follow when
informal or voluntary resolution through a Voluntary Compliance
Agreement cannot be achieved. Paragraph (a) provides the non-exhaustive
list of ways in which the Responsible Civil Rights Official may effect
compliance, which include: a referral to the Department of Justice with
a recommendation that appropriate proceedings be brought to enforce the
rights of the United States under any law of the United States, or any
assurance or contractual undertaking (which includes the assurances and
certifications made in connection with grant agreements and
[[Page 8540]]
the requirements of this proposed rule); the initiation of an
administrative proceeding by filing a Complaint and Notice of Proposed
Adverse Action pursuant to 24 CFR 180.415, which may seek the
suspension or termination of or refusal to grant or to continue to
grant Federal financial assistance along with any other appropriate
relief to remedy the noncompliance with this proposed rule; the
initiation of debarment proceedings pursuant to 2 CFR part 2424; and
any applicable proceeding under State or local law. This paragraph
incorporates the familiar and longstanding mechanisms that HUD uses to
effect compliance with fair housing and civil rights requirements by
recipients of Federal financial assistance.
Paragraph (b) provides for the remedies that will be available to
the Department if a program participant fails or refuses to furnish an
assurance required under Sec. 5.160(i), Sec. 5.162(e), or Sec.
5.170(c), or if the program participant otherwise fails to comply with
the requirements of this proposed rule. Specifically, in these
circumstances, the Department may seek to terminate, refuse to grant,
or not continue Federal financial assistance. Paragraph (c) further
details the predicate steps that must occur prior to an order
suspending, terminating, or refusing to grant or continue Federal
financial assistance becomes effective. These procedures are intended
to ensure that program participants', as recipients of entitlement
grants from HUD, due process rights are satisfied prior to any
termination, suspension, or refusal to grant or to continue to grant
Federal funds. Like those in paragraph (c), the procedures in paragraph
(d) are the same procedures that exist under the other Federal civil
rights statutes requiring compliance by recipients in connection with
the receipt of Federal funds. As drafted in this proposed rule, these
procedures are written in a manner to give program participants greater
clarity as to how this process will be operationalized. Furthermore,
Paragraph (d) ensures that HUD will provide appropriate and proper
notice to the State or local government official when the Secretary
determines that a recipient of Federal financial assistance under title
I of the Housing and Community Development Act of 1974, as amended (42
U.S.C. 5301-5318) has failed to comply with this proposed rule. This
notice is intended to safeguard the due process rights of recipients
and is consistent with regulatory and statutory requirements of the
Community Development Block Grant program.
Hearings (Sec. 5.174)
New Sec. 5.174 describes the procedures for administrative
hearings that HUD will follow should it need to effect compliance by
filing a Complaint and Proposed Notice of Adverse Action pursuant to 24
CFR 180.415 before HUD's administrative law judges. These procedures
are consistent with the hearing procedures contained in other
regulatory schemes implementing the Federal civil rights laws, such as
title VI of the Civil Rights Act of 1964 and section 504 of the
Rehabilitation Act of 1973. They should be familiar to both HUD and
program participants and are generally governed by HUD's regulation on
Consolidated HUD Hearing Procedures for Civil Rights Matters at 24 CFR
part 180. However, this provision is included to ensure that program
participants understand the procedures that would be applicable.
Conforming Amendments Consolidated Plan Regulations (24 CFR Part 91)
Because the AFFH regulation in 24 CFR part 5 builds on existing
consolidated plan regulations with respect to the community engagement
process, the obligation to incorporate fair housing goals from the
Equity Plan into subsequent planning documents, the submission of
certifications, and procedures for effecting compliance with this
proposed rule, conforming amendments to the consolidated plan
regulations must be made to reflect the incorporation of the Equity
Plan process into the consolidated planning process.
Applicability (Sec. 91.2)
This section specifies that all programs covered by the
consolidated plan must comply with the requirements to affirmatively
further fair housing.
Definitions (Sec. 91.5)
Section 91.5, the definition section of HUD's consolidated plan
regulations, would be revised to reflect that the term ``Equity Plan''
is defined in 24 CFR part 5.
Consultation; Local Governments (Sec. 91.100)
Section 91.100 of HUD's consolidated plan regulations would be
amended to account for the community engagement process and procedures
required for the development of the Equity Plan pursuant to Sec.
5.158.
Paragraph (c) of Sec. 91.100, which requires the local government
to consult with the local PHA, would be amended to provide that the
jurisdiction must also consult with the PHA regarding the Equity Plan,
including affirmatively furthering fair housing strategies and
meaningful actions that will implement the fair housing goals from the
Equity Plan.
The proposed rule adds a new paragraph (e) to Sec. 91.100 to
address the requirement to affirmatively further fair housing.
Paragraph (e) provides that the local government shall consult with
community- and regionally-based organizations that represent protected
class members or enforce fair housing laws, such as state or local fair
housing enforcement agencies, including participants in the Fair
Housing Assistance Program (FHAP), fair housing organizations and other
non-profit organizations that receive funding under the Fair Housing
Initiative Program (FHIP), and other public and private fair housing
service agencies, to the extent such entities operate within its
jurisdiction.
As noted in paragraph (e), this consultation will help provide a
better basis for the local government's Equity Plan, its certification
to affirmatively further fair housing and other portions of the
consolidated plan concerning affirmatively furthering fair housing.
Paragraph (e) provides that the consultation required under this
paragraph can occur with any organizations that have the capacity to
engage with data informing the Equity Plan and are sufficiently
independent and representative to provide meaningful feedback to a
jurisdiction on the Equity Plan, the consolidated plan, and their
implementation. A Fair Housing Advisory Council or similar group that
includes community members and advocates, fair housing experts, housing
and community development industry participants, and other key
stakeholders can meet this critical consultation requirement.
The proposed rule requires consultation to occur throughout the
fair housing planning process, meaning that the jurisdiction will
consult with the organizations described in this section in the
development of both the Equity Plan and the consolidated plan. The
AFFH-related consultation on the consolidated plan shall specifically
seek input into how the fair housing goals identified in the accepted
Equity Plan will be incorporated into the consolidated plan, including
funding allocations. This community input and consultation is critical
to ensure that the jurisdiction is meeting the fair housing needs of
the community through the implementation of the fair housing goals
[[Page 8541]]
from the Equity Plan into the consolidated plan.
Citizen Participation Plan; Local Governments (Sec. 91.105)
This section is amended to provide program participants with the
option to incorporate and include the community engagement requirements
from Sec. 5.158 for the development of the Equity Plan into the
requirements governing the local government's citizen participation
plan, should the program participant decide to do so. While reference
to the Equity Plan is made throughout Sec. 91.105, the amendments to
specifically note are as follows:
Paragraph (a)(1) distinguishes the citizen participation plan
required for purposes of the consolidated plan from the community
engagement requirements of Sec. 5.158 for purposes of the Equity Plan.
This paragraph provides jurisdictions with the flexibility to include
the policies and procedures it will undertake for purposes of the
Equity Plan in the citizen participation plan, so long as all
requirements for community engagement contained in Sec. Sec. 5.150
through 5.180 are included in the citizen participation plan; however,
this paragraph does not require program participants to amend their
citizen participation plans should they choose to undertake community
engagement for purposes of the Equity Plan separate from citizen
participation for purposes of the consolidated plan.
Paragraph (a)(2)(i) of this section would be amended to add
explicit reference to residents and other interested parties, including
members of protected class groups that have historically been denied
equal opportunity and underserved communities, that are encouraged to
participate in the development of the Equity Plan and revisions to the
Equity Plan, along with participation in the development of the
consolidated plan and substantial amendments to the consolidated plan.
Paragraph (a)(2)(ii), which encourages the participation of local
and regional institutions, would be amended to reflect that such
participation is not only important to the consolidated plan but to the
Equity Plan as well.
Paragraph (a)(2)(iii), which addresses consultation with PHAs,
would be amended to include how the jurisdiction will consult with the
PHA regarding the jurisdiction's Equity Plan and how the jurisdiction
will affirmatively further fair housing through implementation of its
fair housing goals from the Equity Plan.
Paragraph (a)(2)(iv) of this section, which encourages the
jurisdiction to explore alternative techniques to encourage public
engagement in the development of the consolidated plan and Equity Plan
would be amended t
[…truncated; see source link]Indexed from Federal Register on February 9, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.